Regional Engineering News

Megan L. Reuwer selected by Super Lawyers as 2012 Maryland Rising Star

Fri, 16 Dec 2011 15:42:10 +0000

Megan L. Reuwer has been selected by Super Lawyers as a 2012 Maryland Rising Star. This marks the second year in a row that she has earned such a designation. Only 2.5% of all attorneys in the state of Maryland may be named a "Rising Star" by Super Lawyers.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

Howard County Considers Property Tax Credit for LEED or Equivalent Homes

Fri, 11 Nov 2011 14:29:47 +0000

Howard County Council Member Calvin Ball has introduced a bill, co-sponsored by Council Member Courtney Watson, that would give property tax credit relief to homeowners of newly constructed R-2 and R-3 zoned homes in Howard County if those homes are rated LEED Silver, or found to be an equivalent to LEED Silver by the Director of Inspections, Licenses, and Permits.

The bill, CB-55-2011, marks the first time that Howard County has considered a residential property tax credit for green homes. It could prove to be a major incentive to potential home buyers who are otherwise on the fence about purchasing a "green" certified home, for it provides that the homeowner may receive a 100% property tax credit for the first year, a 75% property tax credit for the second year of ownership, a 50% property tax credit for the third year of ownership, and a 25% property tax credit for the fourth year of ownership. After four years, the credit will expire, and the homeowner will assume full responsibility for payment of the property tax. [Several news publications have incorrectly read the bill, and have confused the amount of the property tax credit along with the qualifications for attaining the credit.]

It's important to note that the property tax credit runs with the land - thus, if the owner of an R-2 or R-3 home that has received the credit sells his or her home after year 1, the new owner of the green home is eligible to receive the property tax credit for year 2 and beyond (assuming the new owner retains ownership and makes application to the County to receive the credit). An R-2 or R-3 home, as defined by the County, includes single family detached homes, townhomes, and low-rise apartment buildings (that do not have a commercial component).

I think that CB-55-2011, if enacted, could prove to be a win-win situation for both homeowners in Howard County and for the County itself. The building industry has, as we all know, slowed down considerably during this economic downturn. If CB-55-2011 can provide this great incentive directly to a homeowner, while simultaneously promoting green construction in the County, then everyone benefits.

There will be a Legislative Public Hearing on CB-55-2011 on Monday, November 21, 2011 at 7:30pm in the Banneker Room, George Howard Building, 3430 Court House Drive, Ellicott City, MD 21043.

The American Council for an Energy-Efficient Economy Ranks Maryland 10th on its 2011 Scorecard

Fri, 21 Oct 2011 15:54:37 +0000

Yesterday, the American Council for an Energy-Efficient Economy (ACEEE) released its 2011 Scorecard which ranked Maryland 10th , taking into account best practices and leadership in energy efficiency policy and program implementation. This is Maryland's first appearance in the top 10, and it is also one of the six most improved states on the 2011 ACEEE Scorecard.

The ACEEE Scorecard provides a comprehensive assessment of policy and programs that improve energy efficiency in our homes, businesses, industry, and transportation sectors. The Scorecard examines six state energy efficiency policy areas and presents these results in six chapters: (1) utility and public benefits programs and policies; (2) transportation policies; (3) building energy codes; (4) combined heat and power; (5) state government initiatives; and (6) appliance efficiency standards. States can earn up to 50 possible points in these six policy areas combined, with the maximum possible points in each area weighted by the magnitude of its potential energy savings impact.

"I am thrilled that Maryland is being recognized as one of the top ten states and one of the most improved states for energy efficiency," said Malcolm Woolf, director of the Maryland Energy Administration. "As a result of Governor O'Malley's vision in establishing one of the nation's most aggressive energy efficiency goals, Marylanders have already saved over 700,000 MWh of electricity and over $91 million dollars since 2009, and our peak demand program has helped us avoid major blackouts during our record-setting summer heat wave.”

Quote source: http://www.aceee.org/press/2011/10/aceee-massachusetts-overtakes-califo

Rosa Cruz, Deputy Director of Communications and Marketing for the Maryland Department of Housing and Community Development, writes that:

“The Department of Housing and Community Development is proud to contribute to this effort by helping thousands of families improve their home's energy efficiency through our Weatherization program and retrofit initiatives. Also, in the last year, we've launched "Be SMART" which is a loan program to assist single family homeowners, rental property owners and small businesses in making energy efficient improvements.”

This is exciting and timely news, Maryland, since October is Energy Awareness month! Congratulations to all involved in our state’s efforts to become more energy efficient.

*Photo source: http://www.aceee.org/sector/state-policy/scorecard

Maryland Adopts the IGCC - But Will Our Local Governments?

Tue, 12 Jul 2011 15:29:50 +0000

On May 11, 2011, HB 972 was signed into law. This is enabling legislation that allows the Department of Housing and Community Development to adopt by regulation the International Green Construction Code and authorizes local jurisdictions to adopt and make local amendments to the International Green Construction Code. It becomes effective on March 1, 2012.

Will we soon see local jurisdictions begin to adopt the IGCC in its entirety or make amendments to the Code?

Probably. Maryland is an environmentally progressive state, and many of its jurisdictions have been quick to incorporate some form of green building requirements or incentives into their local laws, therefore, it's easy to anticipate that provisions of the IGCC may be appealing to local governments as they continue to mandate "green."

So what is the IGCC?

It is intended to provide model code language that is designed to link together concepts of green building design, building performance, and building safety. It is an overlay code that is intended to advance our existing codes, and uses provisions of the International Energy Conservation Codes as a baseline.

Similar to other green building initiatives, the IGCC focuses on things like energy conservation, water efficiency, building owner responsibilities, site impacts, building waste, and materials and resource considerations. Unlike other green building initiatives (LEED being one example), the IGCC, if adopted by your local jurisidiction (in whole, or in part), will become enforceable and mandatory as part of regular code compliance.

Therefore, the provisions that local jurisidictions choose to adopt and/or to amend will be very important for builders and developers. If and when your local jurisdiction introduces legislation to adopt the IGCC, you will want to become involved in that process as early as possible to voice your concerns. The beauty of HB 972 is that it gives local governments the flexibility to pick and choose those provisions of the IGCC that will work based on that locality. We'll take a look at some of the model language from the IGCC in a follow-up post so you'll be aware of some of the important provisions of the code.

Howard County's First Green Neighborhood - Meet "Locust Chapel"!

Mon, 06 Jun 2011 14:36:56 +0000

I've had the wonderful opportunity to act as the Project LEED AP for Site Development for Howard County's first 'Green Neighborhood" project, a residential subdivision known as "Locust Chapel." Locust Chapel is located in Ellicott City, Maryland, at the intersection of Ilchester and Beechwood Roads, and the project is being developed by Ellicott City Land Holding, Inc.. This project has been a lot of fun, and will feature some outstanding green amenities. I'm chronicling the site development work over at www.locustchapel.com, and I invite you to take a look if you get a chance.

Howard County's Green Neighborhood program is an exciting initiative designed to reward builders and developers for designing and building a site to green standards. It is a County- developed certification program that consists of two components - a site development portion, and a homes portion. At this time, the project has attained its initial designation as a Green Neighborhood for Site Development.

In terms of site development, we are implementing some great green technologies, including:

Site design around the natural grade of the site to reduce the amount of disturbance to natural land areas and grading;
Infrastructure materials sourced from recycled materials located within 200 miles of site to reduce the amount of transit needed to bring materials to site
A construction waste management plan to reduce the amount of trash on-site and recycle materials that can be recycled (including cans and also oil).
Reusing any trees that need to be cleared as mulch to line a natural surface trail that will link the community. Benches and educational kiosks will be located along the trail system.
36 homes will have rain barrels sized to treat a 1 inch rain event. Water collected by the barrels can be re-used for gardens and lawn and will help reduce stormwater runoff from the roof of the residence.
A community pavilion featuring a green roof and solar panels

This is a just a sampling of the many features of Locust Chapel. Check out www.locustchapel.com for more information!

Feel free to contact me with any questions about Howard County's Green Neighborhood program or about Locust Chapel, specifically. I'm happy to share my experiences with you.

New Residential Green Building Bill Passes in Senate

Fri, 08 Apr 2011 14:49:01 +0000

Quick Synopsis:

Current Maryland law does not specifically address comprehensive green building standards with respect to residential structures; HB 630 changes the status quo to require that the Maryland Department of Housing and Community Development (DHCD) encourage the construction of new "high-performance homes."

Current Green Building Law in Maryland:

Maryland High Performance Buildings Act (Ch 124 of 2008): requires that most new or renovated State buildings and new school buildings meet or exceed either USGBC’s LEED criteria for a Silver rating or a comparable rating according to a nationally recognized, accepted, and appropriate standard approved by the Department of Budget and Management and the Department of General Services.
Maryland High Performance Buildings Act (Ch 527 & 528 of 2010): further required that community college capital projects that receive State funds comply with the State’s High Performance Buildings Act (i.e., achieve at least a LEED Silver rating). Chapters 527 and 528 allow community colleges to receive a waiver from this requirement under the Act’s existing procedures.
Maryland has also adopted several energy efficiency and conservation related building code standards deemed important to reducing greenhouse gas emissions and lowering energy costs. Chapter 294 of 2009 required DHCD to adopt the International Energy Conservation Code (IECC) and to consider changes to the International Building Code (IBC) to enhance energy conservation and efficiency.

HB 630:

The bill requires the Maryland Department of Housing and Community Development (DHCD) to encourage the construction of new “high-performance homes.” A high-performance home is defined as a new residential structure that meets or exceeds the current version of either the Silver rating of the International Code Council’s 700 National Green Building Standards, or the Silver rating of the U.S. Green Building Council’s (USGBC) Leadership in Energy and Environmental Design (LEED) for Homes Rating System.

Analysis:

A couple of thoughts:

It’s great that this Bill puts in place the flexibility to choose between LEED and the National Green Building Standard (for previous posts analyzing the differences between LEED and the NGBS, click here and here). Flexibility in choosing what system works best for each individual project is key.
Whether this Bill will be implemented with any teeth remains to be seen – what does “encourage” the construction of high-performance homes really mean? To me, this reads as somewhat of a “feel good” bill – it has nice intentions, but no real teeth. This isn’t exactly a criticism: given the economy and the general state of the residential housing market, a new government mandate demanding that builders build homes to a Silver level would not be feasible; therefore, a bill “encouraging” green residential building may be just the thing to keep the green ball rolling while, at the same time, remaining sensitive to current market conditions.

Announcing - The Law Offices of Megan L. Reuwer, P.A.

Tue, 05 Apr 2011 20:54:01 +0000

I want to very briefly announce the formation of my new law practice, The Law Offices of Megan L. Reuwer, P.A. The opening of my own doors is a very exciting milestone in my life and I am thankful for those who have helped to make it possible! If you're ever in the area, I invite you to stop by for a tour of my new space located at 5300 Dorsey Hall Drive, Suite 107, in Ellicott City, Maryland. I look forward to keeping you informed of developing legal issues impacting the building and development industry on this blog, and I look forward to working with you in the future should you ever require real estate related legal services.

Proposed Statewide Ban on Septic Systems for "Major" Developments

Mon, 07 Feb 2011 15:42:12 +0000

As many of my readers know by now, Governor O'Malley announced in his State of the State address last Thursday his proposal to ban "major" housing developments that use septic systems in an effort to further combat the leakage of pollution into the Chesapeake Bay. This obviously is a major concern for builders in rural areas as well as those parts of Maryland that are within developing areas but that currently do not have sewer connectivity. Based on some reports and administration officials, this proposal, if enacted, could impact housing developments with as few as 6 homes.

For an insightful article detailing the reactions of members of the building industry as well as local planning directors and state environmental agencies, check out an article appearing in the Baltimore Sun, authored by Timothy B. Wheeler, titled "Developers distressed over bid to curb septic systems".

What are your reactions to O'Malley's proposal?

EPA Releases Final Chesapeake Bay TMDL

Mon, 03 Jan 2011 19:49:04 +0000

It's 2011, and that means the final Chesapeake Bay TMDL is now available! In the final TMDL, only New York, Pennsylvania, and West Virginia received allocations that differed from those proposed in their final Phase I WIPs. Furthermore, because EPA determined that many of the jurisdictions’ final Phase I WIPs met all target allocations and/or met EPA’s expectations for reasonable assurance, EPA reduced or eliminated many of the backstop allocations that it had included for those jurisdictions in the September 24, 2010, draft Chesapeake Bay TMDL.

Although Maryland was not "threatened" with any of these backstop allocations as a result of its Phase I WIP, it continues its streak of rising above the crowd and is praised by EPA for establishing the goal of EXCEEDING the interim target allocations. Let's take a closer look...

In its December 29, 2010 Executive Summary, EPA notes that Maryland developed a final Phase I WIP input deck with nitrogen, phosphorus, and sediment controls that more than met the interim target allocations by achieving a 70 percent reduction by 2017, and met the nitrogen, phosphorus, and sediment target allocations by 2020. Maryland’s final Phase I WIP also met EPA’s expectations for providing reasonable assurance that these allocations will be met. As a result, EPA based Maryland’s final allocations entirely on Maryland’s final Phase I WIP.

Maryland Allocations

Maryland meets its nitrogen, phosphorus, and sediment allocations for each basin in the final TMDL, based on EPA’s quantitative and qualitative evaluation of Maryland’s final Phase I WIP. Maryland submitted proposed modifications to its nitrogen, phosphorus, and sediment allocations in each of its five basins. EPA used the Chesapeake Bay Water Quality Model to confirm that these modifications would still attain applicable WQS. Maryland’s final Phase I WIP input deck resulted in jurisdiction-wide loads that are 0 percent over modified nitrogen, phosphorus, and sediment allocations. Maryland’s Bay TMDL jurisdiction-wide allocations are nitrogen 39.09 mpy; phosphorus 2.72 mpy; and sediment 1218.10 mpy.

Maryland Agriculture

Maryland’s final Phase I WIP showed significant improvements from its draft Phase I WIP in the agriculture sector, including a strong contingency statement that significantly bolsters EPA’s reasonable assurance that Maryland will meet its agriculture targets by committing to explore new policy measures and mandatory BMP compliance options. For example, these could include a regulatory change that cover crops be planted on the highest risk acres. The Maryland final Phase I WIP also provides more detail on phosphorus management, strengthens contingencies, improves coordination with USDA, develops a plan for increasing staff levels, and selects a subset of strategies to implement by 2017.
EPA will maintain ongoing oversight of Maryland’s agriculture sector. EPA will use its national review of CAFO State Technical Standards in 2011 as an opportunity to identify any deficiencies in the State Technical Standards for protecting water quality. Through its review of State Technical Standards, EPA also will evaluate whether Maryland’s phosphorus management program is sufficient to address phosphorous imbalances and water quality concerns. If deficiencies are identified that are not addressed by Maryland or a CAFO permit does not include other conditions to achieve nitrogen and phosphorus reductions identified in the final Phase I WIP, EPA may object to permits if they are not protective of water quality.

Maryland Urban Stormwater

Maryland’s final Phase I WIP also showed significant improvement in its commitment to urban stormwater management. In the final Phase I WIP, Maryland committed to several actions to ensure reductions, including limits on lawn fertilizer use, use of natural filters such as riparian buffers and stream restoration, and an increase in watershed restoration requirements for MS4s by requiring additional nitrogen, phosphorus, and sediment reductions. The WIP also included a contingency plan whereby if local utilities or other systems of charges are not underway in 2012, Maryland will seek legislation requiring development of local stormwater utilities via a statewide system of fees. The final Phase I WIP also included descriptions of the policy, financing, and tracking mechanisms for implementing urban stormwater retrofit programs.
Maryland also included in its final Phase I WIP specific activities and milestones for urban stormwater program implementation, including the following:

Renewal of Phase I MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 30 percent of the impervious surface that does not have adequate urban stormwater controls.
Renewal of Phase II MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 20 percent of the impervious surface that does not have adequate urban stormwater controls.
Renewal of State Highway Administration Phase I and Phase II MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 30 percent of the impervious surface that does not have adequate controls.
Regulation of fertilizer applications on 220,000 acres of commercially managed lawns.

While EPA is satisfied overall with Maryland’s demonstration of reasonable assurance, EPA will closely track the nitrogen, phosphorus, and sediment reductions expected to result from these urban stormwater retrofits. EPA will maintain ongoing oversight of Maryland’s urban stormwater sector and will assess how well Maryland is able to track and quantify outcomes from the retrofits projected in its final Phase I WIP.

Maryland Wastewater

Maryland’s final Phase I WIP also showed significant improvement in the wastewater sector. Maryland committed to identify options to structure the Bay Restoration Fund (BRF) fee in order to fully fund Enhanced Nutrient Removal (ENR) upgrades at 67 public major wastewater treatment plants. Options include fees based on consumption, income, or other criteria; and, in 2012, to propose an amendment to the BRF statute to change the BRF fee in order to provide funding needed to complete the upgrades.. Maryland’s final Phase I WIP also included a contingency that if the BRF statute is not amended, “All funding for ENR projects will be reduced from 100 percent grant to provide partial grant funds for each remaining project. Local governments would be responsible for the balance of the necessary funding. State low interest loan funds would be available to assist.”
EPA will maintain ongoing oversight of Maryland’s wastewater sector to ensure that the actions detailed in the final Phase I WIP occur and achieve the expected pollutant reductions.

Maryland Conclusion

EPA applauds Maryland for following up a strong draft with an even stronger final Phase I WIP. Maryland clarifies how its existing programs will implement nitrogen, phosphorus, and sediment reductions ahead of schedule. Both Maryland and EPA are committed to carefully review progress and adopt contingency actions as necessary to achieve and maintain the nitrogen, phosphorus, and sediment reductions.

Maryland planners responsible for the Phase I WIP get a grade "A" from EPA...I just hope that the implementation phase is conducted smoothly and without too many growing pains.

The Chesapeake Bay TMDL's Potential Impacts on Builders and Developers

Wed, 17 Nov 2010 20:06:03 +0000

The draft Chesapeake Bay TMDL -which extends over portions of six states and Washington, DC, an area of 64,000 square miles, a total of 92 watersheds, and 17 million inhabitants -was published on September 24, 2010, and was available for review and public comment through November 8, 2010. The EPA’s stated plan is to produce a final TMDL by the end of 2010. Because the TMDL is being held out as a potential model in the formation of other TMDL's and nutrient reduction programs, and because the Chesapeake Bay TMDL will have a significant impact on the building industry, it's helpful for us to know what is being said about the draft TMDL via the public comments submitted to EPA.

The comment submitted by NAHB, the National Association of Home Builders, makes some excellent points specifically about the TMDL's impact on builders and developers. Here are a few excepts from its comment dated November 8th, 2010 (the complete version of NAHB's public comment is available here as a pdf on www.regulations.gov):

The Chesapeake Bay TMDL's requirements will become a part of the National Pollutant Discharge Elimination System permits issued for controlling the stormwater discharges from construction sites, and will therefore become a part of the stormwater permits issued for homebuilding projects in the Bay watershed.
EPA intends to hold states, municipalities, NPDES permit holders, and citizens responsible if the states do not live up to EPA's visions of compliance.
The stringency of the new pollutant reduction requirements will significantly strain the already challenged state and local government budgets and may simply be unaffordable for the states and localities covered by the rule.

If local governments and municipalities cannot afford the costs associated with the TMDL - who is going to pay?

NAHB alleges that: The costs of the TMDL will be borne by the construction industry in the form of land, planning, and carrying costs; installation and maintenance of BMPs; and, in affected states that have no pollutant allocation set aside for future growth, the requirement to offset all pollutant loadings from new construction activities. These will ultimately be felt in the market as a combination of higher prices and lower output for the construction industry. As output declines and jobs are lost in the construction industry, other sectors of the economy that buy from or sell to the construction industry will also contract and lose jobs. Builders and developers already are being crippled by the economic downturn and the ability of the home-buying public to absorb significant new costs and the TMDL will further exacerbate these challenges. Further, because compliance costs are incurred prior to the home sales, builders and developers will be required to pay carrying costs, which add additional cost to projects.

- Page 17 of the NAHB's comment on EPA-R03-OW-2010-0736.

These are troubling allegations for the building industry. It will be interesting to see if EPA responds to these and other points relating to inconsistencies in modeling in the final version of the TMDL.

Interested to see what other industry and agricultural sectors had to say? The complete set of public comments is available here, on the regulations.gov website.

EPA Releases Draft Chesapeake Bay TMDL and Announces Federal Backstop Measures for Maryland

Tue, 12 Oct 2010 14:39:02 +0000

Based upon deficiencies in several of the draft Phase I Watershed Implementation Plans submitted by Chesapeake Bay watershed states in September, the EPA released its draft TMDL plan on September 24, 2010 with newly incorporated federal backstops. As a quick refresher, remember that the TMDL is designed to ensure that all pollution control measures to fully restore the Bay and its tidal rivers are in place by 2025. The final TMDL will be established by December 31.

EPA's backstop measures include tightening controls on federally permitted point sources of pollution, such as wastewater treatment plants, large animal agriculture operations, and municipal stormwater systems. Let's take a quick look at all proposed backstops, then jump to those proposed specifically for Maryland.

All Federal Backstops (applied in varying degrees per jurisdiction):

Expand coverage of NPDES permits to sources that are currently unregulated;
Increase oversight of state-issued NPDES permits;
Require additional pollution reductions from point sources such as wastewater treatment plants;
Increase federal enforcement and compliance in the watershed;
Prohibit new or expanded pollution discharges;
Redirect EPA grants; and
Revise water quality standards to better protect local and downstream waters

In the draft TMDL, EPA proposes more extensive backstop allocations for Pennsylvania, Virginia, New York, Delaware and West Virginia - only minor changes were made to the plans for Maryland and the District of Columbia.

Federal Backstops for Maryland:

Maryland's Phase I WIP Analysis: EPA found some deficiencies - but found that it meets overall statewide allocations for nitrogen, phosphorus and sediment, with several individual river basins exceeding the allocations for nitrogen, phosphorus, or sediment.
Maryland's Federal Backstop Allocation: EPA asserts that it made "minor level" backstop allocations for Maryland's non-point source load allocations to meet nitrogen, phosphorus, and sediment allocations in each major basin within Maryland. EPA believes that the TMDL does not institute changes to point source wasteload allocations that would affect NPDES permit conditions.

While it is somewhat reassuring to read that EPA believes that the NPDES permit program would not require further federal oversight in Maryland, this is by no means a guarantee. If no new NPDES permits can be issued, then this would stymie the building industry.

The release of the draft TMDL begins a 45-day public comment period that will include public meetings in the watershed states. Maryland's scheduled meetings are as follows:

Oct. 12, 2-4 p.m., The Easton Club, 28449 Clubhouse Drive, Easton, MD
Oct. 13, 2-4 p.m. Sheraton Annapolis, Annapolis, MD
Oct. 14, 2-4 p.m. Hagerstown Hotel and Convention Center, Hagerstown, MD

Maryland's Draft Phase I Watershed Implementation Plan - Now Available

Thu, 02 Sep 2010 19:17:37 +0000

State Phase I Watershed Implementation Plans (WIPs) for the Chesapeake Bay TMDL were due yesterday, September 1, to EPA for its review and approval. Some states did not meet that deadline, but all WIPs should be done within the next few days and forwarded to EPA. The WIPs will be available on this website. As of today, the WIPs that are available on the website are for Delaware; Washington, DC; West Virginia; Pennsylvania; New York; and Maryland. I've linked to Maryland’s DRAFT WIP via the "Useful Links" section (below). Virginia has notified EPA that it will have its WIP done by end of this week.

Maryland's draft Plan was developed by the Maryland Departments of the Environment, Natural Resources, Agriculture, and Planning, using the State’s BayStat process, to comply with the new EPA Chesapeake Bay Total Daily Maximum Load (TMDL) requirements due by the end of this year. The agencies are now seeking public comment and input on the draft Plan and will hold four regional meetings over the next five weeks.

Useful Links:

The WIPs are to be finalized in November of this year and will be a part of the Chesapeake Bay TMDL package to be published on September 24, 2010.

Scheduled Public Meetings on Maryland's Phase I WIP and Chesapeake Bay TDML

Fri, 27 Aug 2010 15:37:22 +0000

Here are some upcoming meetings on Maryland's Phase I Watershed Implementation Plans and the Chesapeake Bay TMDL to add to your Outlook calendar - - -

(The picture at left admittedly is not directly on point...but my lab, Emerson, has been begging to be featured on the blog- and he absolutely loves water!)

The following meetings are hosted by Maryland’s Tributary Teams:

September 27, 2010

5:30-6:30 Elected Officials

7:00 to 9:00 Public

Host- Upper Potomac Trib Team

South Hagerstown High School Auditorium,

1101 South Potomac Street, Hagerstown, MD 21740

September 30, 2010

5:00-6:00 Elected Officials

6:30 to 8:30 Public

Hosts: Choptank, Upper & Lower Eastern Shore Trib Teams

Talbot County Community Center, Wye Oak Room

10028 Ocean Gateway (US Rte 50) Easton, MD 21601

October 4, 2010

5:00-6:00 Elected Officials

6:30 to 8:30 Public

Hosts- Upper Western Shore & Patapsco/Back Trib Teams

MD State Fair Grounds, DNR Bldg/State Fair Museum

2200 York Road, Timonium, 21093 (Use the York Road gate)

October 6, 2010

5:00-6:00 Elected Officials

6:30 to 8:30 Public

Hosts- Patuxent River Commission, Middle Potomac,

Lower Potomac & Lower Western Shore Trib Teams

Prince George’s Soil Conservation District

5301 Marlboro Race Track Road

Upper Marlboro, 20772 (301) 574-5162 X3

Environmental Protection Agency (EPA) Public Meetings on the Chesapeake Bay TMDL:

Tuesday October 12

2:00-4:00pm

The Easton Club

28449 Clubhouse Dr

Easton, MD

Wednesday October 13

2:00-4:00pm

Sheraton Annapolis

173 Jennifer Road

Annapolis, MD

Thursday October 14

2:00-4:00pm

Hagerstown Hotel & Convention Center,

1901 Dual Hwy

Hagerstown, MD

(Meeting and Webinar)

An Overview of Two New Critical Area Cases and How They Might Impact You

Wed, 04 Aug 2010 15:44:41 +0000

*This post is guest authored by Jessica Snow Barnes, a land use, zoning, and environmental law associate in O'Malley, Miles, Nylen & Gilmore, P.A.'s Charles County office in La Plata, Maryland.*

Environmental laws and regulations promulgated by the Maryland General Assembly and State administrative agencies seek to protect the State’s natural resources by imposing restrictions on development-related activities. One area of law that has developed over the years is the Chesapeake Bay Critical Area Protection Program (the “Critical Area Act”), which was first adopted by the Maryland General Assembly in 1984 (Natural Resources Article, § 8-1801, et seq.). Two cases handed down from the Maryland Court of Appeals on July 22, 2010, have implications regarding the Critical Area Act and its interpretations by local jurisdictions charged with the responsibility of local enforcement.

1. Margaret McHale v. DCW Dutchship Island LLC, et al.

Since its inception, the Critical Area Program has been revised and expanded. Perhaps one of the most notable amendments to the Program occurred with the passage of Maryland House Bill 1253 in 2008 (the “2008 Amendments”), which included increased buffer standards, increased restrictions on new development by broadening the definition of those items that could be considered as impervious surfaces (i.e., lot coverage), and increased penalties for violation of the Critical Area Act such as those violations that occurred on Little Dobbins Island.

On July 22, 2010, in an opinion filed by Judge Harrell in the case of Margaret McHale v. DCW Dutchship Island, LLC, et al., the Maryland Court of Appeals was asked to consider whether a provision in the 2008 Amendments could be fairly applied to a variance application filed by an applicant as a result of prior violations to the local jurisdiction’s Critical Area Program. At issue in McHale was a provision within the 2008 Amendments that requires an applicant to have an approved restoration or mitigation plan prior to obtaining a variance.

The Court of Appeals concluded that the provision at issue in the case could not be applied retrospectively to the variance application submitted on behalf of DCW Dutchship, which was required as the result of a series of Critical Area violations that were discovered on Little Dobbins Island in 2004. All statutes are presumed to operate prospectively.

“This presumption” Judge Harrell wrote, “is based on the ‘fundamental principle…that retroactive application of new laws is usually unfair” because doing so “increases the potential for interference with persons’ substantive rights.”

Citing the uncodified language in Section 5 of HB 1253, the Court of Appeals concluded that the challenged provision in the 2008 Amendments (requiring an approved restoration or mitigation plan prior to the issuance of a variance) could not be applied retroactively. The pertinent part of Section 5 reads as follows: “…for the purpose of a criminal prosecution under § 8-1815(a)(2)(ii) of the Natural Resources Article…this Act shall be construed prospectively to apply only to a Critical Area violation alleged to have arisen out of an act or omission that originated on or after July 1, 2008, and this Act may not be applied or interpreted to have any effect on or application to an alleged critical area violation that originated before the effective date of this Act (emphasis added)."

2. Sara Caldes, et al., v. Elm Street Development, et al.

At issue in Caldes, was a 2006 Order entered by the Anne Arundel County Board of Appeals granting certain requested variances for development, as required by the local zoning ordinance. There were several issues that the Court of Appeals addressed in its opinion, however, this discussion is limited to the issues pertaining to the Critical Area. One of the first issues addressed by the Court of Appeals was the apparent conflict between the “base” or underlying land use classification and the “overlay” zone applied to the Elm Street Property. The Elm Street Property is located in an R-1 Residential District, which mandates a minimum lot size of 40,000 square feet (less than one acre). The property is also located within the Critical Area Overlay Zone (specifically the Resource Conservation Area), which dictates a maximum permitted density of not more than one dwelling unit per 20 acres.The Court concluded that Anne Arundel County’s “Antiquated Lots Law” (now the “Lot Merger Law) was a “grandfathering” provision permitting the Elm Street property to be developed with more than one dwelling per 20 acres.

Another legal issue peculiar to land use and zoning cases presented in Caldes: the notion of a “variance” and the sufficiency of an application for a local zoning officer to issue the variance as requested. In affirming the variances approved by the Anne Arundel County Board of Appeals, the Maryland Court of Appeals noted the

“burden on an applicant seeking a variance is very high” because the Critical Area Program requires the local jurisdiction to “presume that the specific development activity in the critical area…does not conform with the general purpose and intent” of the Critical Area Act.

The approach taken by the Court of Appeals as stated in Judge Murphy’s opinion is instructive: an appellate court gives “considerable weight” to an administrative agency’s (Anne Arundel County Board of Appeals) “interpretation and application of the statute which the agency administers.” The Court’s deference to these principles is demonstrated by the fact that large portions of the Board of Appeals’ opinion and statements by the Critical Area Commission were quoted in Judge Murphy’s opinion.

Conclusion: The Critical Area Act and local Critical Area Programs adopted by local jurisdictions such as Anne Arundel County (the location of both Little Dobbins Island and the Elm Street property) continues to be a developing area of Maryland law. The local jurisdictions (and the property owners in each of the respective areas) rely heavily upon the Critical Area Act itself, COMAR, and the local Critical Area programs that have been approved by the Critical Area Commission to guide development. While these opinions appear quite specific to the local jurisdiction (Anne Arundel County), they can be applied across the State. Environmental protection is an issue of local and national concern. While the decisions that have been handed down in these two cases are final, the degree of mitigation and restoration required under the Critical Area Act and the constraints placed upon private property rights in Maryland is not.

If you have questions on this article or on land use, zoning and environmental law in general, Jessica can be reached at jbarnes@omng.com.

Maryland Watershed Implementation Plan Regional Exchange

Wed, 21 Jul 2010 14:29:43 +0000

Last Thursday, July 15th, I attended the last scheduled Bay Watershed Implementation Plan Regional Exchange, held at the Prince George's County Soil Conservation District Office in Upper Marlboro...and let me tell you - The. Room. Was. PACKED! There's obviously a lot of interest in how this plan is going to be created, implemented, and then monitored, and rightly so! The plan will have a huge impact on how we address nutrient and sediment deposits in the Bay watershed.

The purpose of this meeting was twofold: first, for the primary host, Maryland's Department of Natural Resources, to explain a bit about the eventual phases of the Plan (there are three) and the basic tasks that they've been charged with addressing in the plan; and second, for input from citizens on how to tackle the challenges of meeting the interrelated goals established by the TMDL and by the President's Executive Order (see this post for general information on the WIP, this post for information on the recently announced TMDL allocations for Maryland, and this post for information on the President's Executive Order on the Chesapeake Bay).

Highlights from Catherine Shanks (Department of Natural Resources) informative presentation include the following:

The state can and will allocate loads to sectors and sources - this means eventually allocating nutrient and sediment maximums per County (probably in Phase II of the WIP). (My editorial: important questions here include: What branch of the County government will be responsible for implementing, tracking, and monitoring the plan? How will land use designations be correlated amongst counties in determining the allocations? How will allocations within the County be doled out? What happens when maximum capacity is reached?)
Accounting for growth will be a major component of the plan. (My editorial: this could have a profound impact on the building industry).
The WIP's interaction with other water management plans is still something that is on the table - how will the plan interact with MS4 programs?
DNR is considering implementing water policies at the state level as a possibility to address growth issues, including zoning and transportation factors.
Anne Arundel and Caroline counties are currently in pilot programs at the county level, and the results of these programs will likely be attached to the Phase I WIP as an addendum.
Phase I of the WIP will be available for public comments starting on September 24 and concluding on November 8, 2010.

The public pulse - here are a few comments and ideas generated at the meeting:

The amount of nutrient and sediment flowing into the watersheds near already developed/urban areas will likely be higher than in less developed, rural areas. How are we going to prevent the unintended consequence of pushing development into more rural areas that have less nutrient and sediment impact (i.e., will the plan create higher allocations at urban centers to encourage infill and redevelopment?)
MDE should raise its permit fees to help pay for inspection and monitoring (My editorial: this is of concern - the concept of increasing already high fees simply because these permitees are easy targets doesn't gel).
There should be a critical area type program created for ALL the waters of the state
Make those responsible for the nutrient deposits responsible for the cost of implementing the plan (My editorial: this could be very fair for the industry - many studies and reports show that farming activities are the highest producers of nutrient and sediment deposits in the watershed).
The state should create legislation mandating a tax/fee on impervious surface area created.

As you can see, some of the comments made, if taken into consideration in the WIP, will be very unfavorable towards the industry. It's going to be important to comment during the public review phase (September 24- November 8, 2010) to get the industry's voice heard. There were a few representatives of the industry present at the meeting who spoke quite eloquently and appealed to the plan makers on the concept of growth management, but the meeting was primarily attended by citizen environmental activists and environmental groups.

If you're interested in reading comments made at other regional exchange meetings, MDE has posted each meeting in PowerPoint format on its website, available here.

Prince George's County Green Power Coalition

Thu, 15 Jul 2010 17:26:55 +0000

Last night, I attended the Prince George's County Green Power Coalition's Candidate Briefing event held at the International Brotherhood of Electrical Workers building in Lanham, Maryland (Lisa Lincoln, Co-chair of the Coalition, is featured in the image at left).

Even though it's an election year and therefore one might expect a flurry of politicians and would-be politicians to be in attendance, I have to admit that I was both suprised and impressed by the sheer numbers of candidates, incumbents, and members of the public who attended this briefing. I think this shows that the green movement is growing in force and in interest in Prince George's County. If our future leaders are listening (and I think they are), they know that some of the topics discussed last night and in the Coalition's Platform document, titled "Building Healthy and Vibrant Communities" (available here as a pdf), are going to be very hot topics in the coming years.

The Coalition briefed candidates on six main areas that they urged were necessary to address in order to establish a healthy and vibrant community, as follows:

Climate Change and Energy - reducing energy consumption and increasing the production of renewable energy in the County can have a major impact on the local economy and on local health. The Coalition suggests that the County should mandate energy audits for large energy users in both the private and public sector; work with the private sector to create a loan program to promote investing in remediation projects; and require local governments to have comprehensive energy plans.
Waste Management - creating partnerships between the County, local governments, and the private sector to improve waste management will provide a cleaner County, save money, and stimulate local business opportunities. Suggestions made in Platform document include implementing a zero waste goal; creating a mandatory and comprehensive residential and commercial waste recycling requirement; and creating legislation that calls for a plastic bag fee, among others.
Land Use and Transportation - the Coalition alleges that the 2002 Prince George's County General Plan is "broken and needs to be revised." The Coalition wants to see our land plans focusing on development around metro stations in the County and on strengthening pedestrian-oriented and multi-modal (read: bicycle) linkages.
Green Business - to foster the growth of green business, the Coalition suggests that the County create an "Office of Sustainability" to promote existing green businesses and encourage green building practices in the County.
Sustainable Agriculture and Local Foods - protect farmland and improve the County's farm economy by enhancing land preservation policies and expanding farmers' markets.
Water Quality and Natural Resources - the Coalition recommends that the County implement a policy to ensure that the first 1.7 inches of rainwater during a storm stay on the land where it falls. It also recommends that the County create a fee structure to discourage the creation of impervious surfaces and encourages redevelopment in areas that already have a high amount of impervious surfaces.

Obviously, a lot of the suggestions noted in the Platform document directly relate to the land development and building industry. While I believe that many of these ideas are great in theory, my hesitation is that some of these suggestions, if implemented exactly as stated in the Platform document, could have a chilling effect on business opportunities in the County - especially as our economy is still in the process of recovering from the recession. Reaching that perfect balance between fostering opportunities for growth and protecting our existing resources is a constant struggle, but I'm confident that we'll get there one day. Opportunities to engage in a dialogue and present ideas, like the Coalition's event last night, will help us get closer to striking that balance.

EPA Announces Draft Nitrogen and Phosphorus Allocations for Maryland

Wed, 07 Jul 2010 19:07:22 +0000

EPA submitted this letter to Maryland on July 1, 2010 detailing the revised annual nutrient loadings that will be proposed under the Chesapeake Bay TMDL for each of the Bay states and Washington, DC.

These annual loadings are expected to be achieved by the end date of the Bay Restoration Program of 2025 (2020 for Maryland). The TMDL’s annual loading for sediment in each state will be provided by EPA to the states on August 15, 2010.

The nitrogen and phosphorus draft allocations are intended to be used to during Maryland's development of its Watershed Implementation Plan (WIP). Let's take a look at the jurisdiction-wide allocations for Maryland:

Chesapeake Bay Watershed Nitrogen and Phosphorus Draft Allocations - Maryland
Basin	Nitrogen Draft Allocations (million pounds per year	Phosphorus Draft Allocations (million pounds per year)
Susquehanna	1.08	0.05
Eastern Shore	9.71	1.09
Western Shore	9.74	0.46
Patuxent	2.85	0.21
Potomac	15.70	0.90
MD TOTAL	39.09	2.72

Important Deadlines:

August 15, 2010: EPA to provide the basinwide, jurisdictional, and major river basin draft allocation for sediment
September 1, 2010: EPA expects jurisdictions to submit draft WIP's which sub-allocate these nutrient and sediment allocations among source sectors and the 92 Bay TMDL segmentsheds.
September 24, 2010: EPA to propose for comment (for a 45-day public comment period) the draft Bay TMDL.
November 29, 2010: Maryland to submit its revised WIP to EPA

I've heard several members of the development industry remark that Maryland's Watershed Implementation Plan will have a significant impact on the industry - and, the draft nutrient load allocations presented in EPA's letter (and the sediment load allocations to come on August 15) will, in turn, play a major role in the WIP.

MDE is still hosting listening sessions on the WIP - the last one occurs on July 15, 2010 from 10:00 am to 12:00 noon in Upper Marlboro, MD at the Prince George's County Soil Conservation District Office (5301 Marlboro Race Track Road).

Raising Awareness of the Bay Through Open Water Swimming

Thu, 10 Jun 2010 15:04:07 +0000

As Marylanders, we all appreciate and value the great resource that is the Chesapeake Bay. I spend a lot of time focusing on the building industry's impact on the Bay (and the Bay's impact on the industry!) on this blog, but every once in a while, it's nice to be reminded that the Bay is many things to many people. Today's post is guest authored by Bill Shipp, a partner with O'Malley, Miles, Nylen & Gilmore, P.A.

Raising Awareness of the Bay Through Open Water Swimming

On June 13, 2010, approximately 600 swimmers of all ages will once again attempt to swim across the Chesapeake Bay. The annual event is one of the premier open water events in the United States covering a 4.4 mile course swum mostly between the two spans of the Chesapeake Bay Bridge. The swimmers leave the beach at Sandy Point State Park in two waves with hopes of finishing on the eastern shore near Hemingway’s Restaurant. The swim has become a right of passage for competitive swimmers, triathletes, fitness swimmers and open water swimming enthusiasts. Some will finish in less than 2 hours but most will take between two and three hours to complete the rigorous swim. The length of time required to complete the swim is effected by wave height, strength of the currents and other race conditions.

The race is scored by time with participants ranked by their finish overall and within their own age group and gender. Some enter the race to compete for the best time and to achieve top placement, however, many enter the swim for the sense of accomplishment achieved by swimming singlehandedly across the Bay. The challenging nature of the swim and the majesty of viewing the bay and the two spans of the bridges from water level make this one of the most popular open water swims in the nation.

In addition to providing a venue for a top open water event, the Bay Swim also provides a platform to raise awareness of the Chesapeake Bay and to promote efforts to aide in its restoration. Through entry fees and charitable donations, the Great Chesapeake Bay Swim has raised over $1 million dollars for charities. In addition to the March of Dimes, money has been donated to a variety of Bay-related organizations including, The Chesapeake Bay Trust; The National Aquarium, Bay Restoration Project; The Chesapeake Bay Foundation; The Chesapeake Bay Power Boat Association; and CRAB- Chesapeake Region Accessible Boating.

The Chesapeake Bay Trust is representative of the sponsored non-profits with a stated mission to increase stewardship through grant programs, special initiatives, and partnerships that support environmental education, on-the-ground restoration, and community engagement activities.

Funding provided by the Trust sparks on-the-ground change in communities throughout Maryland and works to cultivate a new generation of Bay stewards. Thus, participants in the swim are not only enjoying an open water swim, they are helping to promote organizations actively involved in promoting stewardship of the Bay.

This kind of active outreach and cross promotion of recreation and environmental awareness is a key to long term efforts to educate future generations on the efforts to restore the Bay.

For many, the Great Chesapeake Bay Swim will be a once in a lifetime opportunity to test themselves and to swim across Maryland’s most magnificent body of water. For others, it is an annual test of endurance and a great source of camaraderie with fellow open water swimmers. Some will swim the Bay once while others have made over 20 crossings - but for everyone, the experience is never forgotten and never gets old.

Bill Shipp is an attorney at OMNG and is a LEED AP. This will be his fourth Bay crossing.

Maryland's Phase I Watershed Implementation Plan

Fri, 04 Jun 2010 14:29:11 +0000

The Maryland Department of the Environment has initiated the process of developing Maryland's Chesapeake Bay Phase I Watershed Implementation Plan (WIP). As you may recall, the requirement of a WIP stems from the EPA's recent mandates to the six watershed states in response to Federal Executive Order 13508.

The plans will provide a road map for how the states and the District, in partnership with federal and local governments, will achieve and maintain the Bay TMDL nitrogen, phosphorus, and sediment allocations necessary to meet Bay water quality standards. To facilitate the process of developing the Phase I WIP, MDE is hosting four, two-hour "regional exchange" meetings which will include the participation of staff from the Maryland Departments of Environment, Natural Resources, Agriculture, and Planning.

Additionally, the EPA has recently (April 2010) issued a guidance document to states which details how a state's Phase I WIP will be evaluated; specifically, the document provides clarification on the eight elements expected to be addressed in each Phase I plan. I won't summarize all eight elements (the complete guidance document is available here for your review), but I will touch on a few issues that may prove to be of concern to the building and development industry.

Element 2 - Current Loading Baseline: Jurisdictions have the opportunity to submit alternative information on current loads to the Bay and nutrient sediment control implementation rates by source. What this means: If you have relevant information on current loads to the Bay that you can back up with documentation, you might want to consider presenting that information to MDE at one of its upcoming regional exchange meetings (see details to follow). (Example: you have a study that demonstrates that pollutant run-off from a non-point source is lower than previously shown and you'd like the MDE to consider this in forming the Phase I WIP).
Element 3 - Account for Growth: Maryland can make a recommendation to the EPA as to how it wishes to allocate target loads (ie - can set aside target loads to account for loading increases that could result from future growth). What this means: This could have implications on the allocations available for existing point and non-point sources, because by increasing allocations set aside for new projects, this has the effect of reducing allocations available for existing development. Obviously, both sides of the coin here will impact members of the building industry. If you have a strong feeling one way or the other, again, one of the regional exchange meetings might be an opportune time for you to voice your opinion.

If you're interested in getting your voice heard, you should consider attending one of these exchange meetings, which will take place throughout the state this June. The meeting designated for the North-Central part of Maryland will be held in the first floor conference rooms at MDE on Thursday, June 17 from 6:30-8:30 pm.

Details:

North-Central Maryland
Date/Time: Thursday, June 17: 6:30pm - 8:30pm (Evening)
Location: Baltimore, MD
Maryland Department of Environment, 1st Floor Conference Rooms
1800 Washington Blvd
Baltimore, MD 21230

More information is available on the EPA's website, www.epa.gov/chesapeakebaytmdl/

Emergency Stormwater Regulations Published in the Maryland Register

Mon, 10 May 2010 13:34:36 +0000

The emergency stormwater regulations that were approved by the Joint Committee on Administrative, Executive, and Legislative Review on April 7, 2010 were published May 7, 2010 in the Maryland Register in their official form.

As highlighted previously, some of the most important features of the new emergency regulations include those sections detailing the criteria needed to qualify for an administrative waiver (a project's status as compared to the definition of "preliminary plan" provided in the regulations), as well as the expiration dates of those waivers. It's also important to note that the language of the regulation gives discretion to the approving agency to determine whether an administrative waiver should be given; therefore, even if a project qualifies under the definitions employed by this regulation for an administrative waiver, this is not a guarantee that the "approving agency" will grant the waiver.

Here's a copy of the text published at 37:10 Md. R. 719 (May 7, 2010) for your review:

Notice of Emergency Action

[10-137-E]

The Joint Committee on Administrative, Executive, and Legislative Review has granted emergency status to amendments to Regulations .01 and .05 and new Regulation .01-2 under COMAR 26.17.02 Stormwater Management.

Emergency status began: April 7, 2010.

Emergency status expires: October 4, 2010.

Comparison to Federal Standards

There is no corresponding federal standard to this emergency action.

Economic Impact on Small Businesses

The emergency action has a meaningful economic impact on small business. An analysis of this economic impact follows. The estimated costs of the proposed stormwater management regulations and the 2000 Maryland Stormwater Design Manual, including Supplement 1, on regulated industries and trade groups range from negligible to substantial. While these estimated costs may impact both large and small businesses, small businesses may experience greater positive impacts as a result of the proposed regulations. MDE anticipates that smaller businesses with projects already in the pipeline may be more affected by costs associated with significant redesigns needed to meet the May 2009 regulatory requirements. The proposed regulatory changes will allow these projects to proceed under the previous regulations thereby diminishing the need for redesign. When considering this factor, the proposed stormwater management regulations will have a negligible to moderate positive impact on small businesses.

.01 Purpose and Scope.

A. — C. (text unchanged)

D. The provisions of these regulations may not be construed to affect the requirements for a project located in an Intensely Developed Area of the Chesapeake and Atlantic Coastal Bays Critical Area to comply with the 10 percent Pollution Reduction Requirement under COMAR 27.01.02.03 D(3).

.01-2 Grandfather Provisions.

A. In this regulation, the following terms have the meanings indicated:

(1) Administrative Waiver.

(a) "Administrative waiver" means a decision by the approving agency pursuant to this regulation to allow the construction of a development to be governed by the stormwater management ordinance in effect as of May 4, 2009, in the local jurisdiction where the project will be located.

(b) "Administrative waiver" is distinct from a waiver granted pursuant to Regulation .05C of this chapter.

(2) Approval.

(a) "Approval" means a documented action by a county or municipality following a review to determine and acknowledge the sufficiency of submitted material to meet the requirements of a specified stage in a local development review process.

(b) "Approval" does not mean an acknowledgement by the approving agency that submitted material has been received for review.

(3) Final Project Approval.

(a) "Final project approval" means approval of the final stormwater management plan and erosion and sediment control plan required to construct a project's stormwater management facilities.

(b) "Final project approval" includes securing bonding or financing for final development plans if either is required as a prerequisite for approval.

(4) "Preliminary project approval" means an approval as part of a local preliminary development or planning review process that includes, at a minimum:

(a) The number of planned dwelling units or lots;

(b) The proposed project density;

(c) The proposed size and location of all land uses for the project;

(d) A plan that identifies:

(i) The proposed drainage patterns;

(ii) The location of all points of discharge from the site; and

(iii) The type, location, and size of all stormwater management measures based on site-specific stormwater management requirement computations; and

(e) Any other information required by the approving agency including, but not limited to:

(i) The proposed alignment, location, and construction type and standard for all roads, access ways, and areas of vehicular traffic;

(ii) A demonstration that the methods by which the development will be supplied with water and wastewater service are adequate; and

(iii) The size, type, and general location of all proposed wastewater and water system infrastructure.

B. An approving agency may grant an administrative waiver to a development that received a preliminary project approval prior to May 4, 2010. Administrative waivers expire according to §C of this regulation and may be extended according to §D of this regulation.

C. Expiration of Administrative Waivers.

(1) Except as provided for in §D of this regulation, an administrative waiver shall expire on:

(a) May 4, 2013, if the development does not receive final project approval prior to that date; or

(b) May 4, 2017, if the development receives final project approval prior to May 4, 2013.

(2) All construction authorized pursuant to an administrative waiver must be completed by May 4, 2017, or, if the waiver is extended as provided in §D of this regulation, by the expiration date of the waiver extension.

D. Extension of Administrative Waivers.

(1) Except as provided in §D(2) of this regulation, an administrative waiver shall not be extended.

(2) An administrative waiver may only be extended if, by May 4, 2010, the development:

(a) Has received a preliminary project approval; and

(b) Was subject to a Development Rights and Responsibilities Agreement, a Tax Increment Financing approval, or an Annexation Agreement.

(3) Administrative waivers extended according to §D(2) of this regulation shall expire when the Development Rights and Responsibilities Agreement, the Tax Increment Financing approval, or the Annexation Agreement expires.

.05 When Stormwater Management is Required.

A. — B. (text unchanged)

C. Waivers.

(1) (text unchanged)

(2) [Stormwater] Except as provided in §C(3) and (5) of this regulation, stormwater management quantitative control waivers shall be granted only to those projects within areas where watershed management plans have been developed consistent with §E of this regulation.

(3) [If] Except as provided in §C(5) of this regulation, if watershed management plans consistent with §E of this regulation have not been developed, stormwater management quantitative control waivers may be granted to projects:

(a) That have direct discharges to tidally influenced receiving waters; [or]

(b) That are in-fill development located in a Priority Funding Area where the economic feasibility of the project is tied to the planned density, and where implementation of the 2009 regulatory requirements would result in a loss of the planned development density provided that:

(i) Public water and sewer and stormwater conveyance exist;

(ii) The quantitative waiver is applied to the project for the impervious cover that previously existed on the site only;

(iii) ESD to the MEP is used to meet the full water quality treatment requirements for the entire development; and

(iv) ESD to the MEP is used to provide full quantity control for all new impervious surfaces; or

[(b)] (c) (text unchanged)

(4) [Stormwater] Except as provided in §C(5) of this regulation, stormwater management qualitative control waivers apply only to:

(a) — (c) (text unchanged)

(5) Stormwater management quantitative and qualitative control waivers may be granted for phased development projects if a system designed to meet the 2000 regulatory requirements and local ordinances for multiple phases has been constructed by May 4, 2010. If the 2009 regulatory requirements cannot be met for future phases constructed after May 4, 2010, all reasonable efforts to incorporate ESD in future phases must be demonstrated.

D. Redevelopment.

(1) — (2) (text unchanged)

(3) An approving agency may develop separate policies for providing water quality treatment for redevelopment projects if the requirements of §D(1) and (2) of this regulation cannot be met. Any separate redevelopment policy shall be reviewed and approved by the Administration and may include, but not be limited to:

[(a) Retrofitting;

(b) Stream restoration;

(c) Pollution trading; or]

(a) A combination of ESD and an on-site or off-site structural BMP;

(b) Retrofitting including existing BMP upgrades, filtering practices, and off-site ESD implementation;

(c) Participation in a stream restoration project;

(d) Pollution trading with another entity;

[(d)] (e) Design criteria based on watershed management plans developed according to §E of this regulation[.];

(f) Payment of a fee-in-lieu; or

(g) A partial waiver of the treatment requirements if ESD is not practicable.

(4) The determination of what alternative stormwater management measures will be available may be made by the approving agency at the appropriate point in the development review process. Counties and municipalities shall consider the prioritization of alternative measures in §D(3) of this regulation after it has been determined that it is not practicable to meet the 2009 regulatory requirements using ESD. In deciding what alternative measures may be required, an approving agency may consider factors including, but not limited to:

(a) Whether the project is in an area targeted for development incentives such as a Priority Funding Area, a designated Transit Oriented Development area, or a designated Base Realignment and Closure Revitalization and Incentive Zone;

(b) Whether the project is necessary to accommodate growth consistent with comprehensive plans; or

(c) Whether bonding and financing have already been secured based on an approved development plan.

[(4)] (5) — [(7)] (8) (text unchanged)

E. (text unchanged)

Roman type indicates text already existing at the time of the proposed action.
Italic type indicates new text added at the time of proposed action.
Single underline, italic indicates new text added at the time of final action.
Single underline, roman indicates existing text added at the time of final action.
[[Double brackets]] indicate text deleted at the time of final action.

2012-2013 Federal Programmatic Milestones Released

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Fri, 06 Jan 2012 18:13:00 +0000

As called for in the EO 13508 Strategy, the Federal Leadership Committee for the Chesapeake Bay has released final 2012-2013 federal programmatic milestones for water quality restoration. These milestones represent the collective commitments of six different federal agencies who are among the federal partners that are providing leadership in the protection and restoration of the Chesapeake Bay. The milestones, which will help to ensure accountability, are near-term targets for making incremental progress toward achieving our shared 2025 implementation goals. They are designed to support the Bay jurisdictions in meeting their water quality standards and in achieving the pollution reduction goals described in the jurisdictions' Watershed Implementation Plans.

Download the 2012-2013 federal programmatic milestones.

Provide feedback on the Draft Federal Programmatic Two-Year Milestones for Water Quality

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Tue, 01 Nov 2011 14:24:00 +0000

The Executive Order 13508 Strategy calls upon federal agencies to join the Chesapeake Bay watershed jurisdictions in establishing two-year milestones. The first set of draft programmatic two-year milestones for water quality available for feedback are for calendar years 2012 and 2013. The list represents federal agency programmatic (non-facility) milestones for the EO 13508 Restore Clean Water goal area. The milestones were selected to represent the activities that have the potential to have significant environmental outcomes, that require significant resources, or that directly support the jurisdictions in meeting Watershed Implementation Plan commitments.

The final federal water quality two-year milestones will be announced with the jurisdictions’ 2012-2013 milestones and the federal milestones for the other strategy goal areas - Recover Habitat, Sustain Fish and Wildlife, Conserve Land and Increase Public Access, and Supporting Strategies - by January 7, 2012.

Download the Draft Federal Programmatic Two-Year Milestones for Water Quality (443.68 kb).

Please provide any feedback on these draft milestones by November 30, 2011.

$491 Million in Federal Resources Targeted for Chesapeake Bay Restoration in FY 2011

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Thu, 30 Sep 2010 16:10:00 +0000

Federal agencies working together to implement President Obama’s Chesapeake Bay Executive Order have published a first-annual Action Plan that details $491 million in fiscal year 2011 funding and activities dedicated to restoration and protection of the Chesapeake Bay and its watershed, including meeting the specific goals set forth in the Executive Order strategy.

Download the Action Plan: Chesapeake EO Action Plan FY2011.pdf (726.29 kb)

The 2011 Action Plan, required by the Executive Order, conveys the full scope of on-the-ground and in-the water efforts the federal government will undertake between October 1, 2010, and September 30, 2011 in the Chesapeake Bay watershed. These actions and initiatives are based on the President’s FY 2011 Budget Request and are contingent upon receipt of congressional appropriations in support of that request.

“The Action Plan for FY 2011 reflects a deep commitment and unprecedented coordination among federal agencies and the Obama Administration to improve our results in protecting and restoring the Chesapeake Bay and its watershed,” said Pete Silva, EPA Associate Administrator for Water. “The proposed funding and planned activities will help support state and local efforts, as well as be an investment in countless communities and local economies throughout the region.”

Allocations are based on funding proposed in the President’s Budget that is directly attributable to implementing the Executive Order strategy by the FLC agencies. This includes direct budgets for Chesapeake Bay activities, allocations of agency base funding toward the Executive Order strategy and shares of national programs that can be attributed to supporting the Executive Order strategy in the Chesapeake watershed.

Among the restoration projects and programs identified for FY 2011: $72 million in financial and technical assistance targeted to help farmers implement voluntary conservation practices in high-priority areas; over $20 million directly to the states and the District to implement stronger regulatory and accountability programs to control urban, suburban, and agricultural runoff; and $30 million dollars for land protection. The Action Plan also includes projects to restore fish passage to 67 miles of streams and design more than 60 acres of oyster reefs for establishment in the Piankatank River.

“USDA, alongside its federal partners, stands ready to provide historic levels of financial and technical assistance to agricultural producers in the Chesapeake Bay watershed in the coming year,” said Ann Mills, USDA Deputy Undersecretary for Natural Resources and Environment. “Each conservation practice implemented by producers will help Bay states achieve their TMDL milestones.”

Following the structure of the Executive Order strategy, the Action Planis organized into four goal areas (water quality, habitat, fish and wildlife and land and public access) and four supporting strategy sections (citizen stewardship, environmental markets, climate change and science). It also includes a brief section on implementation and accountability efforts.

Throughout each section of the Action Plan, specific activities, lead agencies and completion dates for each activity are identified. At the end of each goal or supporting strategy section is a summary of funding by outcome and agency. A summary table of funding by goal or supporting strategy and agency is also included.

“This action plan lays the groundwork for how the Department of Interior will invest in restoring the health of the wildlife, fish and shellfish, and habitats of the Chesapeake watershed – from its headwaters to the estuary,” said Deputy AssistantSecretary for Fish, Wildlife and Parks Will Shafroth. “Our on-the-ground efforts with other federal agencies, states, local communities and stakeholders will help to restore and protect this national treasure.”

In addition to the annual Action Plan, the Executive Order directs the FLC to publish an annual Progress Report reviewing indicators of environmental conditions in the Chesapeake Bay, assessing implementation of the Action Plan during the preceding fiscal year and recommending steps to improve restoration and protection progress. These progress reports will help assess the success of the FLC agencies’ efforts in implementing the actions identified in annual action plans and provide the agencies with a regular opportunity to adjust implementation efforts to maximize success.Because the FY 2011 is the first full implementation year for the strategy, the FLC plans to release the first annual progress report early in 2012.

Federal agencies welcome public comment on this Action Plan, and are particularly interested in comments that will help improve future Actions Plans, including the level of detail needed, format, quantity of information, timing, and how to involve the Bay watershed community in development of future plans. The public can submit ideas and suggestions by October 31, 2010.

Download a briefing on the Action Plan: Action Plan Briefing.pdf (1.29 mb)

New Federal Strategy for Chesapeake Launches Major Initiatives and Holds Government Accountable for Progress

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Wed, 12 May 2010 14:30:00 +0000

Download the Executive Summary - ChesapeakeEO Strategy Executive Summary.pdf (872.17 kb)

Download the Full Strategy - ChesapeakeEO Strategy.pdf (7.79 mb)

Download the Goals and Outcomes - ChesapeakeEO Goals and Outcomes.pdf (128.87 kb)

The new federal strategy for the Chesapeake region released today focuses on protecting and restoring the environment in communities throughout the 64,000-square-mile watershed and in its thousands of streams, creeks and rivers. The strategy includes using rigorous regulations to restore clean water, implementing new conservation practices on 4 million acresof farms, conserving 2 million acres of undeveloped land and rebuilding oysters in 20 tributaries of the bay. To increase accountability, federal agencies will establish milestones every two years for actions to make progress toward measurable environmental goals. These will support and complement the states’ two-year milestones.

The “Strategy for Protecting and Restoring the Chesapeake Bay Watershed” was developed under the executive order issued by President Obama in May 2009, which declared the Chesapeake Bay a national treasure and ushered in a new era of shared federal leadership, action and accountability.

The strategy deepens the federal commitment to the Chesapeake region, with agencies dedicating unprecedented resources, targeting actions where they can have the most impact, ensuring that federal lands and facilities lead by example in environmental stewardship and taking a comprehensive, ecosystem-wide approach to restoration. Many of the federal actions will directly support restoration efforts of local governments, nonprofit groups and citizens and provide economic benefits across the Chesapeakeregion.

“This strategy outlines the broadest partnerships, the strongest protections and the most accountability we've seen in decades. It's a new era for our work on the Chesapeake Bay,” said EPA Administrator Lisa P. Jackson, who chairs the Federal Leadership Committee for the Chesapeake.“Through President Obama's leadership and the commitment of many active stakeholders, we have an historic opportunity to restore the environmental health of these waters and the vibrant economy of this community.”

To restore clean water, EPA will implement the Chesapeake total maximum daily load (a pollution diet for the Chesapeake Bayand local waterways), expand regulation of urban and suburban stormwater and concentrated animal feeding operations and increase enforcement activities and funding for state regulatory programs.

The U.S. Department of Agriculture (USDA) will provide farmers and forestowners throughout the bay watershed with the resources to prevent soil erosion and keep nitrogen and phosphorous out of local waterways. USDA will target federal funding to the places where it will have the greatest water quality impact and ensure that agricultural producers’ conservation efforts are accurately reported. USDA will also lead a federal initiative to develop a watershed-wide environmental services market that would allow producers to generate tradable water quality credits in return for installing effective conservation practices.

“A thriving, sustainable agricultural sector is critical to restoration of the Chesapeake Bay,” said USDA Secretary Tom Vilsack. “We will help the bay watershed’s farmers and forest owners put new conservation practices on 4 million acres of agricultural lands so that agriculture can build on the improvements in nutrient and sediment reductions that we have seen over the last 25 years.”

Conserving 2 million acres of natural areas, forests and farmland preserves the environmental, recreational, cultural and economic benefits these lands provide. To protect priority lands, the Department of the Interior will launch a collaborative Chesapeake Treasured Landscape Initiative and expand land conservation by coordinating federal funding and providing community assistance. Interior will also develop a plan for increasing public access to the bay and its rivers.

“Under the leadership of President Obama, our strategy provides the blueprint for finally restoring the Chesapeake Bay to health – its bountiful wildlife, abundant fish and shellfish, beautiful waterways and rich wetlands,” said Secretary of the Interior Ken Salazar. “My department, which has 13 refuges and 51 units of the National Park System throughout the watershed, will play a key role in the plan, working hand-in-hand with other federal agencies, states, local communities and other stakeholders to restore this national treasure cherished by so many.

The National Oceanic and Atmospheric Administration (NOAA) and the U.S. Army Corps of Engineers will launch a bay-wide oyster restoration strategy in close collaboration with Maryland and Virginia that focuses on priority tributaries, expands commercial aquaculture and bolsters research onoyster stock, habitat and restoration progress. Oysters are among the bay’s most struggling species and restoration in 20 tributaries will yield great environmental and economic benefits.

"Oysters are a key species for Chesapeake Bay restoration. Not only are they important to seafood lovers, but they cleanse water and form reef habitat," said Dr. Jane Lubchenco, Undersecretary of Commerce for Oceans and Atmosphere and NOAA Administrator. "It is critical that we apply our best science toward native oyster restoration and habitat protection, as well as toward development of sustainable aquaculture. Ecosystem-based approaches to management will enable progress toward a healthy, sustainable Chesapeake ecosystem that will include oysters for generations to come.”

Several overarching approaches in the strategy are also important:

Short-term action: To accelerate the pace of restoration and protection, many actions occur in the next few years, and many of the actions are “on-the-ground” and “in-the-water” all around the Chesapeake watershed.

Supporting local efforts: The strategy is designed to directly support the restoration activities of local governments, watershed groups, county conservation districts, landowners and citizens.

Benefiting economies and jobs: Many actions will provide economic benefits, including conservation of working farms, expanded oyster aquaculture, support for conservation corps programs and green jobs, and development of an environmental marketplace for selling, buying and trading credits for pollution reductions.

Targeting of resources: Agencies will be aggressively targeting resources where they can have the most impact – areas with the most pollution and potential for runoff, with the highest potential for restoring fish and wildlife, and with habitats and lands most in need of protection.

EPA Release Final Guidance on Federal Land Management

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Wed, 12 May 2010 14:29:00 +0000

Chesapeake Bay Executive Order Section 502 calls upon the Administrator of EPA to publish guidance for federal land management in the Chesapeake Bay watershed. EPA’s objective in developing the guidance is to provide the information that will allow federal agencies to lead by their example. The guidance provides information and data on appropriate proven and cost-effective tools and practices for implementation on federal lands and at federal facilities.

From the perspective of land management and water quality restoration/protection, this set of “proven cost-effective tools and practices that reduce water pollution” is also useful for nonfederal land managers to restore and protect the Chesapeake Bay. These tools and practices, when implemented broadly, would significantly advance the restoration of the Chesapeake Bay.

Extensive studies of the Chesapeake Bay indicate that the great majority of nonpoint sources in the Chesapeake Bay watershed will need to be controlled, and controlled well, in order to restore the Bay. Accordingly, this guidance has chapters addressing the categories of nonpoint source pollution from federal land management activity in the Chesapeake Bay watershed that are sources of nutrients and sediments currently contributed to the Bay. The categories of activity addressed in this guidance are agriculture, urban and suburban, including turf, forestry, riparian areas, decentralized wastewater treatment systems, and hydromodification.

Each chapter contains one or more "implementation measures" that provide the framework for the chapter. These are intended to convey the actions that will help ensure that the broad goals of the Chesapeake Bay Executive Order can be achieved. Each chapter also includes information on practices that can be used to achieve the goals; information on the effectiveness and costs of the practices; where relevant, cost savings or other economic/societal benefits (in addition to the pollutant reduction benefits) that derive from the implementation goals and/or practices; and copious references to other documents that provide additional information.

The guidance is available at http://www.epa.gov/nps/chesbay502/

Federal Agencies Respond to Public Comments for Final Strategy

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Wed, 12 May 2010 14:28:00 +0000

With the November 2009 release of the draft strategy, federal agencies initiated a public comment period and stated that it would provide a response to comments document when the final Strategy for Protecting and Restoring the Chesapeake Bay Watershed was released. The request for written comments was part of a larger effort to consult with members of the public regarding the federal government’s response to the Executive Order. Federal agencies also conducted a series of stakeholder meetings throughout the Chesapeake Bay watershed and consulted extensively with the Chesapeake Bay states.

During the formal public comment period, federal agencies received approximately 300 comments. Of that total, about 100 were slight variations of a mass comment campaign. A group of environmental organizations also submitted a list of approximately 50,000 signatures supporting the following statement: “After 25 years it is clear that much more needs to be done to heal the Chesapeake Bay. The Environmental Protection Agency should immediately issue more stringent, enforceable limits for the bay's biggest polluters: urban development and factory farms. For states or polluters who fail to clean up their waterways, the EPA should enforce strict penalties such as withholding federal dollars or new permits. States and the EPA should restore the bay in the fastest possible timeline. We've already waited over two decades for a healthy bay.”

Comments were received from federal agencies, states, local governments, land conservation organizations, row-crop and animal agriculture interests, environmental organizations, wastewater industry representatives, Chesapeake Bay Program advisory committees, and other stakeholders. These comments can be viewed by visiting the electronic docket (docket number EPA-HQ-OW-2009-0761) at http://www.regulations.gov or EPA’s Docket Center in Washington, DC.

The federal agencies considered the public comments and incorporated them into the final strategy document, Strategy for Protecting and Restoring the Chesapeake Bay Watershed, as appropriate. Rather than respond to every individual comment, federal agencies opted to group comments into areas of particular significance and to respond to such comments as a group. These groups of comments were identified for each of the strategy’s goals and supporting strategies.

Download the full response to public comment

Chesapeake EO Strategy Public Comment Response.pdf (337.91 kb)

Federal Officials to Release New Strategy for Chesapeake Bay Watershed Under President Obama’s Executive Order

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Tue, 11 May 2010 21:07:00 +0000

Federal officials will hold a news conference on Kingman Island in Washington, D.C. at 9:30 a.m. on Wednesday, May 12 to release a new federal strategy for protecting and restoring the Chesapeake Bay watershed that was drafted under President Obama’s Executive Order.

WHO: Nancy Sutley, Chair, Council on Environmental Quality

Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency

Tom Vilsack, Secretary, U.S. Department of Agriculture

Ray Mabus, Secretary, U.S. Department of the Navy

Anne Castle, Assistant Secretary for Water and Science, U.S. Department of the Interior

Monica Medina, Principal Deputy Undersecretary for Oceans and Atmosphere, U.S. Department of Commerce

WHEN: 9:30 a.m., Wednesday, May 12

WHERE: Kingman Island, Washington, D.C. Directions at http://www.kingmanisland.org/8301.html

Draft Guidance Released on Reducing Water Pollution to Chesapeake Bay

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Mon, 22 Mar 2010 17:07:00 +0000

The U.S. Environmental Protection Agency today released draft guidance for federal lands management in the Chesapeake Bay watershed that describes the most effective tools and practices to reduce water pollution. In addition to federal lands, the guidance addresses a variety of nonpoint sources, including agricultural lands, urban and suburban areas, and septic systems.

The draft guidance, which is required by the Chesapeake Bay Executive Order, provides federal land managers with a guide to implementing the best proven tools and practices to restore and protect the region’s waterways and the Bay. The same techniques can be utilized by states, local governments, conservation districts, watershed organizations, developers, farmers and citizens in the Chesapeake Bay watershed.

The cost-effective tools and practices outlined in the document are indicated by current scientific and technical literature to be the most state-of-the-art approaches to reduce water pollution from nitrogen, phosphorus and sediment.

“EPA expects the tools and practices described in this draft guidance to help the federal government lead by example at its facilities and on its land in the Chesapeake Bay watershed,” said Assistant Administrator for Water Peter S. Silva. “States can also use this guidance as a valuable tool to help determine the most effective measures to achieve the pollution reduction goals of the Chesapeake Bay TMDL.”

Public comment on the draft guidance will be accepted for 30 days. EPA will then revise the document for release with a strategy for Chesapeake Bay protection and restoration in May 2010. The draft guidance is available at http://www.epa.gov/nps/chesbay502/

The key areas in which the Executive Order draft guidance defines next-generation tools and practices are:

Agricultural on Federal Lands: The draft guidance focuses on significantly expanding on practices and actions that control the delivery of nitrogen, phosphorus and sediment from agriculture by employing a whole-farm nutrient management planning approach, including source control and avoidance, in-field control, and edge-of-field trapping and treatment. The tools and practices presented build from the most recent, state-of-the-art literature in nutrient management planning and provide information on reducing pollution from both livestock production on animal feeding operations and row crop agricultural lands.

Development on Federal Lands: In the draft guidance, EPA emphasizes that hydrology is the principal driver of water quality impairments in developed and developing areas. EPA establishes a primary focus on maintaining and restoring predevelopment hydrology to the maximum extent technically feasible. The draft guidance presents background information, data, examples and resources that demonstrate how to implement low-impact development and other green infrastructure techniques that infiltrate, evapotranspire and use stormwater onsite.

Reducing nonpoint source pollution is one of the greatest challenges to restoring water quality in the region’s streams, creeks and rivers, and the Chesapeake Bay. Some relevant facts include:

In addition to contributing 31 percent of phosphorus loads and 11 percent of nitrogen loads to the bay, urban and suburban runoff and stormwater sources are the only significant pollutant source that is increasing.
On a per-acre basis, construction sites can contribute the most sediment of all land uses – as much as 10 to 20 times that of agricultural lands.
Almost half of all the nitrogen and phosphorus pollution delivered to the Chesapeake Bay are from agricultural sources, including both livestock production and row crop land.

Draft Environmental Goals and Outcomes Released

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Fri, 19 Mar 2010 16:42:00 +0000

As part of developing a new strategy for restoration and protection of the Chesapeake Bay, President Obama's Executive Order directs the federal government to “define environmental goals for the Chesapeake Bay and describe milestones for making progress toward attainment of these goals.”

Federal agencies have released a document that includes a draft vision for a restored Chesapeake Bay watershed, environmental goals and measurable outcomes of planned actions. Since these elements were not included in the draft strategy released in November 2009, the federal agencies committed to release a goals framework for public review prior to issuance of the final strategy in May 2010. The document does not include all of the actions that were outlined in the draft strategy released in November 2009 or that will be included in the final strategy due in May.

To maintain coordination and consistency with current restoration activities of the Chesapeake Bay Program’s federal and state partners, existing measures of health and restoration were used as the starting point for the Executive Order goals and outcomes. Some refinements were made to existing measures to better address the needs of the Chesapeake Bay ecosystem and reflect expanded federal action. More details on the draft goals and measurable outcomes are available in the appendix.

Public feedback on the draft vision, goals and measurable outcomes is essential, and comments can be submitted by April 2, 2010. The draft vision, goals and measurable outcomes will be modified based on public feedback and a revised version will be paired with detailed actions in the final strategy to be released by May 12, 2010.

Read the Draft Executive Order Goals Framework.pdf

Public Forums, Public Comment Period Continue

Allen.Greg.nospam@nospam.epamail.epa.gov (Admin) — Wed, 09 Dec 2009 21:47:00 +0000

The public comment period on the Chesapeake Bay Executive Order draft strategy and revised reports remains open until January 8, 2010. The draft strategy will evolve through public comments, state consultations and agency revisions before the final strategy is published in May 2010.

Also, a series of public forums are scheduled around the watershed for federal officials to present the draft strategy and hear feedback. View the Public Forum Schedule

Draft Strategy for Chesapeake Bay
Download executive summary | Download full document | Comment

202(a) Water Quality Report
Download | Comment

202(b) Targeting Resources Report
Download | Comment

202(c) Federal Stormwater Report
Download | Comment

202(d) Climate Change Report
Download | Comment

202(e) Access & Landscapes Report
Download | Comment

202(f) Scientific Support Report
Download | Comment

202(g) Habitat & Living Resource Report
Download | Comment

Can Corporations Violate Human Rights? In Kiobel v. Royal Dutch Petroleum, the Supreme Court May Say Yes ... or No

Thu, 23 Feb 2012 14:18:21 +0000

On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights. For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta. The Ogoni people living in the delta protested Shell's operations, and in response the Nigerian government harshly oppressed them. Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests. Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law. The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by the First Congress, in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law. In 2004, in Sosa v Alvarez-Machain, the Supreme Court affirmed that the ATS still provides jurisdiction for international tort claims, but it cautioned federal courts not to recognize claims "for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms" familiar when the law was enacted. As an example of such a historical paradigm, the Court cited the long-standing prohibition against piracy.

Mardi Gras, Check. BP "Trial of the Century" Here We Come.

Wed, 22 Feb 2012 14:12:55 +0000

Mardi Gras Float, 2011 Well, another magnificent Mardi Gras has ended, and at this point, I'd normally be slouched on the sofa sipping a tomato juice (neat) and sorting beads. But not this year. That's because next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, "The Trial of the Century," otherwise known as the BP Oil Spill litigation. Whatever the rest of the century holds, it seems fair to say that this legal dispute, if it does not settle, will be the most complicated environmental trial anyone has ever seen. With a thousand plaintiffs, a galaxy of witnesses, and 20,000 exhibits, this spectacular has more moving parts than a Madonna half-time show. As the trial unfolds, I'll provide you with some occasional shrimp-boots-on-the-ground legal blogging. First, though, I'll start with the background of the case (please see also two CPR white papers: Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence (Oct 2010) and The BP Catastrophe: When Hobbled Law and Hollow Regulation Leave Americans Unprotected (Jan 2011)). Here are some answers to common questions. Q: Can you remind me what the BP Oil Spill was all about? I remember "Top Kill" and "I'd like my life back," but the rest of it is a little hazy.

The Age of Greed: What the Chemical Industry Doesn't Want You to Know

Wed, 22 Feb 2012 20:08:03 +0000

Imagine for a moment that you'rethe chief executive of a company that manufactures chemicals used in plastics that become consumer products, especially plastic picnic ware. The head of your product development lab reports that she has just gotten some troubling results regarding one of your biggest sellers - a chemical agent that makes it possible for plastic utensils to maintains their decorator colors. The study shows that this agent causes severe neurological damage in rats. The Toxic Substances Control Act, commonly referred to as T(O)SCA, requires you to turn all "health and safety" studies over to the Environmental Protection Agency (EPA). You tell her to do so, but order that the name of the suspect substance be replaced with a so-called "generic chemical name" that makes it impossible for anyone to understand the implications of the study. You further instruct that your company name be redacted from the information transmitted to EPA. The result is a report that neither allows the public to understand the implications of the study nor to monitor how the government and the company curb either its marketing or its use. Any college sophomore biology student knows that scientific advances depend on the free and open sharing of information so that experiments can be replicated and hypotheses disproved. So it was that over the last several days a small group of researchers gathered in Geneva under the auspices of the World Health Organization to wring their hands about whether to make public groundbreaking research on a particularly virulent strain of the lethal bird flu. The upshot? The research will be published, despite the risk that it could be used by terrorists. The group decided that the importance of scientific openness regarding this crucial public health threat outweighed the superficially appealing notion of embracing secrecy that would chill further discoveries.

EPA's Standing Argument: A Sleeping Giant in the Tailoring Rule Litigation?

Tue, 21 Feb 2012 16:53:08 +0000

On Feb. 28 and 29, the D.C. Circuit is scheduled to hear arguments on a suite of industry-led challenges to EPA-issued greenhouse gas rules. While attention has focused on industry's challenge to EPA's finding that greenhouse gases (GHGs) endanger the environment, industry's challenge to the greenhouse gas permitting "tailoring" rule - a rule limiting the CAA's application to only the largest GHG sources - is just as important, and just as interesting a battle. At issue is constitutional law's most hard-fought doctrine in environmental litigation: standing to sue. In its September 2011 brief, EPA contends that the Tailoring Rule is designed to alleviate the burden that the CAA would otherwise impose on a wide variety of stationary GHG sources. Because it is alleviating, not imposing, a burden, the Tailoring Rule does not create the "injury" that industry must demonstrate to have standing to sue. If the plaintiffs lack standing, then the court must dismiss industry's challenge. The injection of standing into the case makes the tailoring litigation all the more interesting because, as a result, the court may have a strong basis for dismissing what is otherwise considered a robust legal challenge to the Tailoring Rule. As an industry group argues in the Tailoring Rule case, Coalition for Responsible Regulation v. EPA, the agency's rule raising the emission thresholds for Prevention of Significant Deterioration and Title V permits flatly contradicts the express language of the Clean Air Act. The Clean Air sets these thresholds at 250 and 100 tons per year, multiples lower than the Tailoring Rule's regulatory thresholds of at least 75,000 tons per year. EPA argues that upping the thresholds was "necessary" to avoid "absurd results" that would otherwise flow from the administrative burdens created by low statutory thresholds, thresholds that could subject numerous small-scale sources, like restaurants and other small businesses, to CAA permitting requirements for the first time. (EPA has said that simply implementing GHG controls without the Tailoring Rule would theoretically require 230,000 new employees to handle the permitting). This is a good common sense argument, but many courts are reluctant to ignore a statute's literal language. The courts may never reach the merits, however, if EPA succeeds in having the suit dismissed on standing grounds.

Placing a Ceiling on Protection for Public Health

Mon, 20 Feb 2012 19:27:51 +0000

Cross-posted from Legal Planet. Governor Romney has endorsed an idea called regulatory budgeting, but it really means capping protection for public health. Romney's position paper explains the concept as follows: To force agencies to limit the costs they are imposing on society, and to provide the certainty that businesses crave, a system of regulatory caps is required. As noted, the federal government has estimated that the existing regulatory burden approaches $1.75 trillion. We cannot afford those costs to go any higher. . . . . . . .In the first term of a Romney administration, the rate at which agencies could impose new regulations would be capped at zero. What this means is that if an agency wishes or is required by law to issue a new regulation, it must go through a budget-like process and identify offsetting cost reductions from the existing regulatory burden. Most of the EPA's major regulations are based on public health, and Romney's "cap" is very much like rationing health care - it says that EPA cannot protect the health of the public from one threat unless it's willing in exchange to allow another threat to public health go untreated. Putting a compliance cap on public health protections is akin to saying that, because medical costs are too high, a doctor could not accept a new patient without cutting off care to an existing patient.

The Economist Recycles Old Right-Wing Ideas to Gut Public Protections

Fri, 17 Feb 2012 21:08:02 +0000

The Economist's February 18 edition offers a cover package of five articles on "Over-regulated America" (1, 2, 3, 4, 5). Our British friends want you to know there's a problem here in the States that needs fixing: A study for the Small Business Administration, a government body, found that regulations in general add $10,585 in costs per employee. It's a wonder the jobless rate isn't even higher than it is. You can almost feel The Economist's pain: the jobless rate should be a lot higher than it is, if the premise about the costs of regulations is correct. Surely if the regulatory burden were actually 12 percent of GDP - that's what the SBA numbers say, if you draw them out - things would be far worse than they are. Ideologically unable to consider the obvious alternative - that regulations don't add $10,585 in costs per employee, The Economist, just, well, "wonders" aloud. Here's what The Economist would have found if they'd dug just a little bit: Fully 70 percent of the SBA estimate was actually based on a regression analysis using opinion polling data on perceived regulatory climate across countries (in a strange twist, a separate article in the same issue actually questions the study, briefly). Whole reports have been written on why that number is bogus. Our economy is still recovering from a tremendous collapse largely caused by under-regulation of financial institutions. But in its group of articles, The Economist wants us to think the opposite: "The home of laissez-faire is being suffocated by excessive and badly written regulation." That premise, in turn, leads the magazine to - you guessed it - a series of warmed-over right-wing policy ideas aimed at gutting regulations. Let's take a closer look.

EPA Releases IRIS Assessment of Dioxin Non-Cancer Risks

Fri, 17 Feb 2012 20:44:17 +0000

Today EPA released the first part of its long-awaited reassessment of the human health risks posed by 2,3,7,8-tetrachlorodibenzo-p-dioxin, a chemical considered to be the most toxic of the dioxin compounds and the stuff that made Agent Orange so bad for its victims. It's bittersweet news: on the one hand, the decades-long stretch between EPA's first look at dioxin and this document is something we don't like to see, while on the other, today marks an enormous step forward. The document released today focuses only on non-cancer effects and sets an oral reference dose - the level of exposure below which key health impacts are unlikely to occur. Past EPA assessments looked only at dioxin's carcinogenic risks, so it is an important development that today's release looks at the many other adverse health outcomes that might occur, such as "chloracne, developmental and reproductive effects, damage to the immune system, interference with hormones, skin rashes, skin discoloration, excessive body hair, and possibly mild liver damage." As Ben Somberg noted here in December, the American Chemistry Council tried to convince EPA that a rider to the FY2012 omnibus spending bill required the agency to pull back the dioxin assessment. CPR President Rena Steinzor and I wrote a letter to EPA Administrator Lisa Jackson to correct the record on ACC's false claim. The letter explained how the House had earlier considered a version of the bill that required EPA to rework all draft and final IRIS assessment due out in FY 2012, but ultimately went with a bill that requires revision of only the draft assessments and not the final assessments. Good for EPA for calling the chemical industry's bluff! The most important part of EPA's dioxin risk assessment is still in the works. The cancer-focused part of the assessment continues to be under review. The National Academy of Sciences undertook a two-year review of EPA's draft dioxin assessment (both the non-cancer and cancer analyses) in 2004-2006. There's no question that dioxin is a carcinogen. This protracted fight over the cancer part of the assessment revolves around exactly how dioxin and related compounds cause cancer. It matters because the mode of action determines the shape of the dose-response curve, which will ultimately impact EPA's best guess as to the "safe" level of dioxin exposure. The lower the level, the more expensive Superfund cleanups become and the more likely it is that guidelines for meat and dairy consumption will have to be rethought. (Dioxin bioaccumulates in fat, resulting in the public's primary routes of exposure being beef, dairy, and freshwater fish consumption.)

The Pipeline That Refuses to Die

Thu, 16 Feb 2012 13:53:45 +0000

Last month, President Obama denied TransCanada's permit application for the Keystone XL pipeline because a congressionally mandated deadline did not allow enough time to evaluate the project once Nebraska completed its analysis for re-routing of the pipeline around the Sand Hills. A January 26-29 poll from Hart Research Associates found that, after hearing arguments for and against the pipeline, 47% of voters in four Presidential battleground states polled agree with President Obama's decision while 36% disagree with it. Yet just this week, the U.S. Senate is considering whether to add language to an unrelated highway authorization bill to force the President to approve the Keystone XL tar sands pipeline. The pipeline rider has the backing of 44 Republicans and one Democrat in the Senate. Passing it is a bad idea on several levels. For one thing, riders like this one short-circuit the congressional process. By inserting an unrelated substantive provision like this into an authorization or appropriation package, the provision doesn't receive the scrutiny that it would if it were forced to stand on its own, and Senators who are against the pipeline might feel compelled to vote in favor of the package because it includes other benefits for their constituents. (For this reason, many state constitutions forbid appropriations riders, but the federal constitution does not.) For more on this see my article Sacrificing Legislative Integrity at the Altar of Appropriations Riders: A Constitutional Crisis.

Will Sackett Sock It To EPA Enforcement?

Wed, 15 Feb 2012 14:07:40 +0000

Two of my CPR Member Scholar colleagues, Nina Mendelson and Holly Doremus have done a first-rate job of previewing and analyzing the oral argument in Sackett v. EPA - a case now awaiting decision by the U.S. Supreme Court. I fully share Professor Doremus's hope that, even if the case results in a loss for the government, the Supreme Court's decision in Sackett will not be decided on constitutional grounds and will be limited in its impact to the Clean Water Act. At the same time, however, I am less sanguine than she is about the potential that exists for even a relatively narrow decision to damage EPA's underfunded and overstressed enforcement effort. It is a little known fact - but it is a fact - that the collective resources of EPA and the states have simply not been able to keep up with the challenges of enforcing Clean Water Act requirements. The governments' portfolio of water pollution threats has evolved from visible discharges from factories and sewage treatment plants to include hundreds of thousands of sources of mining wastes, industrial and municipal storm water runoff, spills of sewage from aging sewer systems, and agricultural runoff. In recent years, the NPDES permit system has drastically expanded in scope. As EPA's 2009 "Clean Water Act Enforcement Action Plan" candidly acknowledged: "The sheer magnitude of the expanding universe of the NPDES program itself, from roughly 100,000 traditional point sources to nearly a million sources...presents challenges in how we regulate and enforce the laws of this country." At the same time, however, the resources available to EPA and the states to meet these challenges have been considerably diminished. EPA's budget has nominally "plateaued" since the mid-1990s. However, the Agency's statutory responsibilities have grown and (until recently) it has had to pay its employees salary increases mandated annually by Congress - a situation that has gradually, but significantly, reduced the funds available to EPA for its regulatory and enforcement work.

One Year Later, OSHA's Rule to Protect Workers from Deadly Silica Still in White House Review

Tue, 14 Feb 2012 14:04:21 +0000

Today marks the first anniversary of an event that received little media attention, but marked a major milestone in the progression of a regulation that is of great importance to thousands of Americans whose jobs bring them into contact with dust particles containing the common mineral silica. Exactly a year ago today the Occupational Safety and Health Administration (OSHA) completed a proposed rule requiring employers in the mining, manufacturing and construction industries to protect their employees from silica dust particles as they engage in such activities as sandblasting, cutting rocks and concrete, and jackhammering. Silica dust is no newcomer to the growing list of workplace hazards. Public health professionals have known for more than one hundred years that exposure to airborne silica dust can cause a debilitating disease caused silicosis. In 1929, as the nation entered the Great Depression, hundreds of workers made their way to Gauley Bridge, West Virginia to work on the Hawk's Nest diversion project, a massive digging operation that created a three-mile long tunnel through Gauley Mountain to divert the flow of the New River for a Union Carbide power generation facility. Before the project was completed, more than one hundred workers had died of silicosis, and many more faced the prospect of slow and painful deaths as a result of their exposure to silica dust.

EPA Releases Inventory of Legal Authorities to Advance Environmental Justice

Mon, 13 Feb 2012 14:28:32 +0000

Last fall, in a speech I gave at an environmental justice event in Los Angeles, I ruffled some feathers with an impromptu line that went something like this: "Believe it or not, federal environmental statutes say nothing directly about environmental justice." During the "Q & A" I was challenged by an environmental activist and lawyer who listed various ways that advocates had successfully used federal environmental statutes to address inequalities in many of California's minority and low-income communities. I saw immediately that I had not been clear. For what I meant was that although environmental statutes could be used to further the interests of social justice, the terrain was not landscaped for that purpose. It took activists with imagination and grit to climb the peaks my questioner was talking about. It took lawyers who could scan the glaciers of the federal code and find a foothold - a place where you could jam your steel-toothed boot, stabilize your momentum, and launch yourself forward. (EPA policy analyst Abby Hall and I expand on our theory of regulatory "footholds" - and also regulatory "rope lines" - here.) Like community lawyers, policy makers need footholds too. EPA Administrator Lisa Jackson has made environmental justice a pillar of her tenure. But many of our environmental statutes, because they pre-date the modern environmental justice movement, were not developed with this priority in mind. So Administrator Jackson asked her lawyers to survey the landscape of environmental authorities for legal standards and directives that would provide the positioning and leverage to promote "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income." EPA's lawyers then catalogued those footholds and put them in a guide intended for use across the agency. In an admirable display of integrity and transparency, EPA has now publicly released that guide for all lawyers, activists, and citizens to see - and perhaps use.

Bureaucracy Bashing, Obama Style

Thu, 09 Feb 2012 14:35:47 +0000

Political scientists have coined the term "bureaucracy bashing" to connote the temptation now rife among national politicians to beat up on the civil service for reasons that have nothing to do with reality. Ronald Reagan pioneered this art form of disrespecting bureaucrats in the name of downsizing government, even as federal deficit spending on government programs he favored grew to epic proportions. Ironically, President Obama has lifted the same hammer in an altogether unsuccessful effort to placate the conservative critics who claim the Reagan mantle. His efforts to pal around with the right-wing are unlikely to win him many friends, and risk undermining the credibility of the government he so badly wants to lead into a second term. The most recent example of the President's penchant for bureaucracy bashing was the State of the Union's "spilled milk" joke, which went over like a lead balloon - even Michelle Obama did not crack a smile. Like other recent examples of President Obama's bureaucracy bashing, this one wasn't even true. Consider the following episodes: In January 2011, President Obama penned an op-ed in the Wall Street Journal on regulatory policy, worrying about "regulations that conflict, that are not worth the cost, or that are just plain dumb." He provided a single specific example: "the FDA has long considered saccharin, the artificial sweetener, safe for people to consume. Yet for years, the EPA made companies treat saccharin like other dangerous chemicals. Well, if it goes in your coffee, it is not hazardous waste." But though industry lobbyists had conjured up the image of a spilled truckload of Tab becoming a Superfund site, saccharin's listing as a "hazardous substance" (because it causes cancer at high doses in rats) never actually created the problems imagined. The EPA did not have the time, the money, or lack of judgment to pursue such situations that could theoretically have been made Superfund sites, if they ever occurred.

The Age of Greed: Children on Motorcycles Chasing Goats

Tue, 07 Feb 2012 14:27:47 +0000

Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:1.0pt; mso-para-margin-right:0in; mso-para-margin-bottom:0in; mso-para-margin-left:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:12.0pt; mso-bidi-font-size:11.0pt; font-family:"Times New Roman","serif"; mso-bidi-language:EN-US;} The debate over whether the government protects people exposed to industrial hazards enough - or whether it engages in ruinous "overregulation" - is only occasionally coherent. Sometimes it's downright bizarre, and never is it for the faint of heart. Consider the case of kids working on farms. Following a series of gruesome accidents involving teenagers as young as 14 who were smothered in grain elevators or lost legs to giant augers used to shovel crops into storage silos, the Department of Labor (DOL) announced a proposal in September to tighten prohibitions on children doing such dangerous work. Existing rules have proven shockingly ineffective: the fatality rate for young agricultural workers is four times greater than for their peers in other workplaces. They were written four decades ago, before many of the machines and methods now commonplace on today's farms were developed. The new rules would exempt children working with their parents on a true family farm (DOL last week made the exemptions even broader). They would also allow kids to raise animals for 4-H competitions and enroll in vocational training programs. They would prohibit children 15 years old and younger from operating tractors, augers, and other hazardous farm equipment, much as their peers off-the-farm cannot drive cars alone. Teens younger than 18 could not work inside grain elevators. Children could not work for money on tobacco farms because they are especially vulnerable to a form of nicotine poisoning known as "green tobacco sickness," caused by dermal absorption of moisture that pools on the leaves. DOL received more than 10,000 comments on the rule, and is considering revisions through the normal, if excessively lengthy, administrative process. Last week, the House Small Business Committee's Subcommittee on Agriculture, Energy, and Trade held a hearing that gave agribusiness and Republican members ample opportunity (witnesses against: 4, witness in favor: 1) to excoriate these protections on the grounds that they would end "family" farming as we know it. Rep. Denny Rehberg (R-Mont.), who is trying to unseat Democratic Sen. Jon Tester, threatened to attach a rider to the Labor Department's appropriation bill to stop the new protections. The justification? They might prohibit him from hiring his 10-year-old neighbor to herd cashmere goats by riding a Kawasaki "youth" motorcycle after the undoubtedly startled critters. "I think you're sitting around watching reruns of 'Blazing Saddles' and that's your interpretation of what goes on in the West," the self-described fifth generation rancher turned Member of Congress condescended in the direction of DOL deputy wage and hour administrator Nancy Leppink. Other witnesses at the hearing, provocatively entitled "The Future of the Family Farm: The Effect of Proposed DOL Regulations on Small Business Producers," told stories about how rewarding it was for their children to feed baby calves, milk cows, and help their parents heft large bales of hay high up into the barn, coming of age in the process. None of these activities would be prohibited by the rule, of course, provided the child was actually helping her parents, and not working for minimum wage at a corporate farm. But imagine for a moment if a factory worker came to testify about how much it developed a child's self-respect to spend 12 hours a day in a sweat shop, pretending that the experience was equivalent to helping grandma do needlework. There are still countries in the world that put children to work under such circumstances. But the United States made it illegal 74 years ago.

Holding Maryland Accountable for Its Chesapeake Bay Clean-Up Obligations

Mon, 06 Feb 2012 13:48:14 +0000

In an article in the most recent issue of The Abell Report, the newsletter of The Abell Foundation, CPR President Rena Steinzor and CPR Policy Analysts Aimee Simpson and Yee Huang take a look at what ails the Chesapeake Bay (Spoiler Alert: it involves years of inaction on pollution), and offer up a number of practical steps the state of Maryland could take to make good on its commitments to clean up this most precious of natural resources. The article draws on a day-long forum CPR co-sponsored this past October with the University of Maryland Francis King Carey School of Law, an event that gathered federal and state officials, as well as leading environmental activists from around the region. Steinzor, Simpson and Huang make the case that the reason efforts to clean up the Bay have largely failed to date is that the Bay states are fundamentally unaccountable. They write: For more than two decades, the primary Bay states (the District of Columbia, Maryland, Pennsylvania, and Virginia) have engaged in a series of round-robin consultations held under the auspices of the Chesapeake Bay Program. Progress was made in diagnosing the causes and implications of dead zones; diminishing crab and fish populations; algal blooms; and pollution that made rivers, lakes, creeks, and streams unusable for drinking, swimming, and boating. Individual states implemented innovative and effective pollution-control programs; glossy reports were produced; and every year, governors and the administrator of the EPA gathered for a photo op on the banks of picturesque Bay waterbodies. Despite the analyzing, meeting, planning, and talking, the Bay's health remains tenuous, and the Bay states have repeatedly failed to meet the pollution-reduction goals set during these appearances.

New Frontiers in OIRA Transparency

Thu, 02 Feb 2012 14:59:02 +0000

In its public meeting records, the White House's Office of Information and Regulatory Affairs (OIRA) frequently misspells the names or affiliations of the attendees. Senator Jon Kyl was once listed as "Sen. Rul." And John Ikerd, affiliated with the University of Missouri (MO) and the Sierra Club, was listed as "John Ikend, University of MD/Siemen Club." Sometimes the misspelled names or affiliations are easy to figure out; other times they aren't (see page 77 of our OIRA white paper from November for more examples). The public is supposed to be able to tell who these people are - that's the whole point, transparency. The misspellings are troublesome, but a new OIRA meeting record I just noticed takes the cake for leaving the public uninformed: Why list the affiliation of the attendees at all?! The occasional typo is one thing, but when OIRA gets it wrong so regularly - or now simply leaves out the affiliations of individuals seeking to influence the outcome of public health and environmental safeguards - it's a mission-defeating problem.

White House Declines to Put Anti-Regulation Measures in "Startup America" Legislative Agenda

Fri, 03 Feb 2012 15:19:05 +0000

The White House announced Tuesday a legislative agenda it is sending Congress as part of its Startup America initiative to foster the growth of new businesses. The White House was under some pressure to do wrong here: the President's "Jobs Council" - a group mostly of CEOs - issued a report last month that included a perhaps unsurprising pile of old anti-regulatory proposals. And Senators Mark Warner and Jerry Moran were pushing the White House to endorse their bill, the Startup Act, which includes anti-regulatory measures that would weaken our existing environmental, health, and safety laws. But here's a bit of good news: the White House didn't include any anti-regulation measures in the Startup America legislative agenda. The document gives just a polite nod to Warner-Moran: The Administration looks forward to working with sponsors of similar initiatives including S. 1965 (Warner-Moran), S. 1866 (Coons-Rubio), S. 1544 (Tester-Toomey), S. 1933 (Schumer-Toomey), S. 1970 (Merkley-Bennet), H.R. 2930 (McHenry), H.R. 1070 (Schweikert), as well as with leaders from the Small Business and Entrepreneurship Committees, including Chairwoman Landrieu, Senator Snowe, Chairman Graves and Representative Velazquez. Too often this White House has tried to appease big business on the regulatory front, even adopting anti-regulation rhetoric. This has hurt, not helped, the White House politically. And it does nothing to create jobs. So it's worth noting that the Administration got this one right. A new poll out Wednesday shows that small business owners' top concern is lack of demand (echoing previous polls). Weakening health and safety protections, on the other hand, is not popular with most of the electorate, and it hurts the public. Stalling the establishment of badly needed public safeguards and undermining federal agencies will not create new jobs. The Administration should keep that in mind, and resist pressure to endorse any anti-regulatory initiatives as it continues to work with Congress on these bills.

New CPR White Paper: What FDA, EPA, and OSHA Should do about BPA

Thu, 26 Jan 2012 15:16:12 +0000

Today CPR releases Protecting the Public from BPA: An Action Plan for Federal Agencies (press release), outlining steps the FDA, EPA, and OSHA can take to use existing authorities to warn the public about the dangers of the chemical, and prepare longer-term regulatory controls. The paper was written by CPR Member Scholars Tom McGarity, Noah Sachs, and Rena Steinzor, and Senior Policy Analyst Matthew Shudtz and myself. Bisphenol A (BPA) makes me want to cry. Not in the sad or mournful way, but in the "I want to kick and scream on the floor and throw a tantrum like my toddler" kind of way. I didn't always feel this way. These feelings concerning BPA (an endocrine-disrupting chemical added to plastics to increase clarity and durability, and used in myriad other sources such as can linings, kitchen appliances, and water bottles) began to arise when I started working with CPR Member Scholars and fellow staff on BPA policy. The more I learned about BPA, the more I felt like its presence in my life was like mosquitoes in D.C. - a summer BBQ killjoy. Then I became a parent, and the frustration and concern escalated, because the more I found out about BPA, the more I recognized that the industries using it did not truly understand how it affected my health, but more importantly, the health of my child. Even worse, the new approaches to testing its "safety" and potential adverse health effects were churning out new evidence of its dangers. Evidence that did not fit the traditional "risk assessment" model used by health and safety regulators and thus spurred no change in protective standards.

The Age of Greed: Science Drowned by Politics

Wed, 25 Jan 2012 18:01:48 +0000

Last week, a reporter asked me, "How's science doing these days?," "Science" is an impossibly big category, of course, but the answer was easy: "Badly," I said. Exhibit number one is climate change. The frightening truth is that no fewer than 84 percent of scientists in this country surveyed by Pew say that the earth is warming because of human activity; 70 percent describe the problem as "very serious." Although much is made of the supposed "dissenters" on the issue, no one with any educated familiarity with the subject doubts that the vast - and I mean virtually all - scientists with meaningful credentials to understand the subject agree that precipitous climate change is happening and that curbing human-generated carbon emissions must be done to avert disasters so grave we can barely imagine them. Human beings have a hard time making sacrifices today to avert problems that seem remote, but the public's ambivalence on this subject is reinforced by a steady and effective public relations campaign by fossil fuel companies to make the science of climate change seem fraught with doubt. I am not willing to argue here that if we could only get the scientific truth straight, we could gallop across the tundra and solve this problem. How to apportion responsibility for sharply decreasing emissions between the developed and developing world is a challenge that may be the toughest we have ever faced. Not only do we lack the policymaking framework for negotiating such changes, but decades of flawed energy policies have hindered and continue to hinder the development of available and affordable solutions. But as long as we are stuck on the science - denying the consensus, elevating the few deniers to a position of equal authority as the well-informed - the short-term, self-serving concerns of a few trump the urgency of the problem for the many. What leadership can we expect from politicians of both parties as we embark on contentious, high-stakes electoral season?

Three Chirps for Risk Reduction

Tue, 24 Jan 2012 20:11:00 +0000

A new study underscores the wisdom of reducing the risks of mercury and other pollutants rather than relying on risk avoidance measures such as fish consumption advisories. Mercury's adverse effects are not limited to human health; its harms are felt throughout our ecosystems. According to this most recent study, released today by the Biodiversity Research Institute, mercury harms a broader swath of wildlife than previously recognized, including many bird species that are not piscivorous. This finding echoes those of studies in the Great Lakes published this fall, which concluded that a larger number of species were adversely affected by mercury contamination than previously understood by scientists. From a regulatory perspective, the harms of mercury contamination might be addressed by risk reduction - measures that require the sources of mercury pollution to reduce or prevent mercury releases into the environment - or by risk avoidance - measures that leave it to those who are exposed to protect themselves from mercury permitted to enter or remain in the environment. The EPA's recent rule regulating coal-fired power plants' mercury emissions is an example of the former approach. An example of the latter approach was the George W. Bush administration's suggestion, upon proposing an exceedingly lax rule for power plants (ultimately vacated by the D.C. Circuit), that people protect themselves from the continued mercury contamination by consulting national and local fish consumption advisories. I have elaborated the many perils of relying on risk avoidance in lieu of risk reduction elsewhere. Among the limitations of depending on risk avoidance measures such as fish consumption advisories, ozone alerts, and "keep out" signs, are the facts that these measures are unjust and ineffective in practice. They simply don't result in "the same amount" of protection for human health, as proponents of such measures hope.

Reclaiming Global Environmental Leadership

Fri, 20 Jan 2012 14:42:27 +0000

For more than a century, the United States took the lead in organizing responses to international environmental problems. The long list of environmental agreements spearheaded by the United States extends from early treaties with Canada and Mexico on boundary waters and migratory birds to global agreements restricting trade in endangered species and protecting against ozone depletion. In the last two decades, however, U.S. environmental leadership has faltered. The best-known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol. But the attention climate change receives should not obscure the fact that the United States has also failed to join a large and growing number of treaties directed at other environmental threats, including marine pollution, the loss of biological diversity, persistent organic pollutants, and trade in toxic substances. Today CPR publishes Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. My co-authors and I show the importance of ten treaties and urge the Obama Administration and Congress to work together to ratify them. Unlike the Kyoto Protocol, these treaties do not generally raise difficult partisan issues. They were all negotiated with substantial U.S. input, and they all provide clear benefits to the United States - or they would if only the United States belonged to them.

PA Marcellus Legislation Brings Several Hammers Down on Local Ordinances

Thu, 16 Feb 2012 22:20:12 +0000

A lot has been said about the preemption of local ordinances contained in the amendments to the PA Oil and Gas Act (HB 1950) recently signed into law by Governor Corbett. But not much has been said about the multiple hammers given to the oil and gas companies for invalidating those ordinances, including private rights of action, and the ability to collect attorneys fees from the local governments.

Under Section 3302 of the new law, all local ordinances purporting to regulate oil and gas operations regulated by the new Chapter 32 of the Oil and Gas Act are "superceded". The law states that "no local ordinance adopted pursuant to the Municipalities Planning Act or the Flood Plain Management Act shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas operations regulated by Chapter 32 or that accomplish the same purposes as set forth in Chapter 32." Let there be no mistake. The state has preempted the local regulation of oil and gas operations. If that isn't clear enough, the law includes several hammers that oil and gas operators can use against municipalities that might be tempted to pass ordinances to test what statutory authority they may have left to impose roadblocks on oil and gas development.

First, an owner or operator of an oil and gas operation who is aggrieved by the enactment or enforcement of a local ordinance is given the right to request that the PUC review the local ordinance to determine if it is subject to the preemption set forth in the new law.

Second, that same owner or operator of an oil and gas operation can jump over the PUC and immediately bring a private action in Commonwealth Court to invalidate or enjoin the local ordinance. If the PUC reviewed and found the ordinance invalid, that finding becomes part of the record before the court. Since this is a civil action, the municipality has to incur legal fees to defend its ordinance before the Commonwealth Court.

Now here's a big hammer. If the court determines that the local government enacted or enforced the ordinance "with willful or reckless disregard", it can order the local government to pay the successful plaintiff "reasonable attorneys fees and other reasonable costs incurred . . . in connection with the action." So, hypothetically, say the municipal solicitor is asked for his or her legal opinion of a proposed local ordinance to be voted on by the supervisors which regulates oil and gas operations. The solicitor reviews the proposed ordinance and opines that it is preempted, but the supervisors, giving in to public pressure, go ahead and vote for the ordinance anyway. (It wouldn't be the first time something like that happened). The oil and gas operator then brings an action in Commonwealth Court to invalidate the ordinance. To me, it wouldn't be that much of a stretch for the court, in that situation, to find that the municipality acted with "willful or reckless disregard" and hold the municipality responsible for paying the oil and gas company's attorneys fees. I assume that hammer may get some municipalities thinking that it may be best just to steer clear of the entire issue.

But if that hammer isn't enough, the law requires that municipalities that already enacted local ordinances before the passage of the latest amendments to review and amend those ordinances within 120 days, so they are in compliance with the preemption limitations. If they don't go back and amend those offending local ordinances, the same procedures apply (PUC or Commonwealth Court review) and the oil and gas operators have the power to collect attorneys fees if they are successful in showing willful or reckless disregard. Funny thing is that when those ordinances were being passed, I don't think any supervisors worried about that. They may even have made statements in the newspaper, like, "we just don't want any of that here." It may make sense for some of them to go back and read their own clippings. Those statements could be costly if the ordinances aren't amended or revoked.

The law does say that if the municipality wins, it can collect attorneys fees from the oil and gas operator who brought the action to invalidate the ordinance if the court determines that the action was "frivolous or brought without substantial justification." But in order to receive reimbursement of its attorneys fees, the municipality would have to take the case all the way to a judgment and then get a determination from the court that the action was frivolous. That could be expensive and it's not clear if municipalities with limited budgets will be willing to hang in there that long defending these ordinances.

Here's the final hammer. if the PUC, the Commonwealth Court, or for good measure, the Supreme Court, issues an order that a local ordinances is preempted, the law states that "the municipality enacting or enforcing the local ordinance shall be immediately ineligible to receive" Marcellus impact fee money "until the local government amends or repeals its ordinance or the determination that the local ordinance is unlawful is reversed on appeal." Ouch. So, if you are the only municipality that passed an ordinance prohibiting the development of Marcellus wells, you run the risk that all your neighboring communities can receive the impact fee money while you are left out.

There's a lot in the new legislation that hasn't been addressed yet in most reporting. These hammers are just one example.

SAB Process Subcommittee Begins Year Long Project to Help DEP Revise the Act 2 Technical Guidance Manual

Thu, 12 Jan 2012 15:29:57 +0000

Yesterday I chaired a meeting in Harrisburg of the Process Subcommittee of the Cleanup Standards Scientific Advisory Board (SAB), which has been tasked with helping provide advice to the Department on revising the Act 2 Technical Guidance Manual (TGM). The subcommittee is made up of SAB members, Department staff, and several outside environmental consultants who have been working with the SAB on vapor intrusion issues.

During the meeting, the Department said that its goal was to have a revised draft of the TGM available for public comment within 12 months. We talked about how the TGM is used most often, where it is most helpful and where it is deficient. We developed a long list of issue areas that will be examined by subcommittee members in greater detail to determine how best to update the Manual as it relates to those issues. We also talked about the need to integrate the Act 2 Q&A from the Department's website into the next version of the TGM, being mindful that some answers might be obsolete or no longer relevant. The goal, however, is to integrate everything that is still relevant and good policy from the Q&A into the next version of the TGM and then wipe out all the current Q&A and start fresh as new questions come into the Department.

Some of the issue areas that will be addressed include those that have arisen subsequent to the development of the first TGM, such as providing more information on the One Cleanup Program and integrating separate UECA and vapor intrusion guidance into the TGM. We also talked about the need for the Subcommittee to provide recommendations on updating the information presented in the TGM on the various Act 2 interface issues, including the interfaces between Act 2 and the Solid Waste Management Act, Clean Fill, Storage Tanks, E&S, Air, Surface Water, and Marcellus Shale (which the Department is in the process of addressing).

One critical component of the subcommittee's work will be outreach to others who work with the Act 2 program to ensure that we've considered all of the possible areas where the TGM needs updating. The PADEP members of the Subcommittee will be reaching out to the regional ECP program personnel and regional counsel that work with those ECP programs to obtain their views. The engineers and geologists on the Subcommittee will reach out to the PA trade associations that represent those groups, and the environmental attorneys will do the same.

I thought the first meeting was very productive. If anyone reading this posting has any thoughts on revising the Act 2 TGM, feel free to send me a comment. If you'd like it posted, please also let me know and I'll share those comments more broadly. I intend to keep everyone posted on the important work being done by the subcommittee.

Secretary Krancer Lays Down the Law Before Congress

Mon, 21 Nov 2011 22:25:42 +0000

In testimony delivered last week before a Congressional Subcommittee in Washington, D.C., PADEP Secretary Michael Krancer did what a thoughtful judge should do. He set forth both the facts and the law on the subject of Pennsylvania's regulation of the Marcellus Shale.

In 19 single-spaced pages, Secretary Krancer systematically debunks every myth about fracing, frac fluids, water usage and water impacts arising from natural gas development. Unlike the emotional appeals of drilling opponents, his testimony relies on unbiased real facts based on actual evidence gathered in the field. His review of Pennsylvania's laws governing oil and gas well operations is detailed and thorough. Anyone reading his testimony will surely agree that Pennsylvania possesses all of the tools that it needs to protect its citizens and the natural resources of the Commonwealth from the risks associated with Marcellus shale exploration and development. His summation, addressed to those that think EPA can do a better job regulating the Marcellus shale than PADEP, is eloquent and to the point. He stated: "Simply put, because of our long history of oil and gas development and comprehensive regulatory structure, Pennsylvania does not need federal intervention to ensure an appropriate balance between resource development and environmental protection is struck." Well said Secretary Krancer.

I would urge everyone active in the development of the Marcellus shale to read Secretary' Krancer's testimony. It presents as compelling a defense as you will read for Pennsylvania being able to control its own economic destiny.

DRBC Postpones Vote on Marcellus Regulations

Fri, 18 Nov 2011 20:18:27 +0000

In a press release issued earlier today, the DRBC announced that it is postponing the special meeting it had scheduled for November 21 to vote on its proposed Marcellus regulations. No new date was provided.

At this point, the uncertainty created by DRBC, and the continued de-facto moratorium resulting from the inability of drillers to obtain permits, has made it very unlikely that any drilling will occur anywhere in the basin even after DRBC issues its regulations. The word on the street is that the leasing agents for the oil and gas companies have been told to stay away from the few counties within the Delaware River basin (mostly Wayne and Pike) that overlie the Marcellus formation and not sign any more leases. In all likelihood, leases previously signed in those counties will be allowed to expire, and the landowners who thought they would be benefiting from development of their shale gas rights in those counties will be out of luck, no matter what the DRBC's final regulations look like. With that said, if you take the few counties that are within the DRBC's jurisdiction off the table for drilling, there still remains a very large untapped area within the central and western parts of the Commonwealth where the regulatory climate is much more welcoming to the shale gas industry. As they said during the gold rush -- Go West Young Man.

CSSAB to Provide Input on Revising Act 2 Technical Guidance Manual

Sun, 30 Oct 2011 18:24:47 +0000

On October 28, I was asked to chair the newly reconstituted Process Subcommittee of the PA Cleanup Standards Scientific Advisory Board (SAB), for the express purpose of helping the Department revise the Act 2 Technical Guidance Manual (TGM). I was participating in the SAB meeting as one of its newest members, having been appointed earlier this year by PADEP Secretary Michael Krancer. Back in the period between 1995 and 1997, when the Department was working on the Act 2 regulations and creating the Act 2 TGM, I attended all of the SAB's meetings in my capacity as PADEP Deputy Secretary. Now I've come full circle, participating as an SAB member, private citizen and environmental attorney, hoping to contribute some ideas for improving what is already recognized as one of the best brownfield programs in the country.

There were two matters discussed at the SAB meeting -- revising the Act 2 TGM and providing further guidance on vapor intrusion.

On revising the Act 2 TGM, as noted above, the SAB decided to reconstitute its Process Subcommittee to provide advice to the Department on this very important project. I agreed to chair the Process Subcommittee after being asked by Ron Buchanan, the chair of the SAB. I expect that the Subcommittee will be looking to form a larger group that includes SAB members, as well as people outside the SAB, including brownfield developers, environmental consultants, and representatives from economic development agencies that work with Act 2. In addition, we discussed having regional office ECP staff and counsel who work with the ECP program included as members of the subcommittee.

The idea is to help the Department identify technical and scientific areas of the Act 2 TGM that could use clarification or revision. Part of that work will be reviewing the Act 2 Q&A on the Department's website to see which of those answers should be integrated into the revised TGM. The SAB Process Subcommittee will prepare a list of recommendations for the people now in charge of the Act 2 program, Denise Brinley and Troy Conrad. I expect the Subcommittee may want to hold several stakeholder meetings to gather input. Troy Conrad said the Department's goal is to have a draft revision of the Act 2 TGM within 12 months. That draft revision would then be put out for public comment.

I am very excited to be helping the Department with this project. I was part of the team within the Department that put together the first version of the Act 2 TGM. We poured our hearts into that to make sure we had the best possible guidance document to go along with the statute and the regulations. Many of the people who worked on the initial TGM are long gone, including, among others, Karen Bassett, Ken Bowman, Joe Chnupa, Tom Fidler, Ken O'Korn and Jim Snyder. Sam Fang was the person who worked on all the statistical analysis, and it was nice to see him sitting with the PADEP folks at the SAB meeting. We still have many Act 2 veterans within the Department working on this, including Jim Shaw and Dave Crownover, along with Denise and Troy, who have both helped manage the program for many years. A number of SAB members have also been around from the very beginning and their participation on the Subcommittee will be invaluable. As I observed during the meeting, we have so much Act 2 talent around the table that I am very confident that the SAB will be able to make a meaningful contribution to the work of revising the Act 2 TGM.

Anyone with any thoughts or comments on areas of the Act 2 TGM that should be looked at by the SAB Process Subcommittee, should feel free to send me an email or post a comment.

The other matter discussed by the SAB at the October meeting was vapor intrusion. The SAB has a subcommittee chaired by Annette Guiseppi-Eli. She presented the subcommittee's report, which included a 3 page paper with issues for further discussion. Those issues included: (1) the proper place within the Act 2 TGM for the vapor intrusion guidance; (2) the difficulty using soil screening tables based on the new J&E model; (3) dealing with occupied structures and potential future structures; (4) addressing vapors on neighboring properties: (5) avoiding vapor sampling by moving directly to installation of a VI abatement system; (6) sampling guidance; (7) petroleum cases; and (8) clarification regarding the use of the term "background" in the context of dealing with vapor intrusion.

The subject of vapor intrusion is very complex and highly technical. Regardless of whether anyone thinks the risks posed by vapor intrusion are overblown, it is clear that the federal government is taking vapor intrusion very seriously and it expects the states to follow suit. There's talk of new Superfund sites being added to the NPL solely on the basis of vapor intrusion. Pennsylvania has marched to the beat of its own drummer for many years on vapor intrusion, generally having screening levels that are more lenient than EPA and many other states. That is what the SAB is wrestling with -- how does one change those screening levels without causing every Act 2 project to have to perform costly soil vapor sampling? After all, at many sites, the vapor sampling can be much more expensive than the eventual vapor remedy, which often involves installing a relatively inexpensive radon-like mitigation system. As we engaged in the discussion of sampling and screening tables, I continually brought up the question how any of this will effect sites that have already gone through the Act 2 process and received releases of liability. For example, if the screening levels are reduced significantly, will that mean reopening past liability releases to address vapor intrusion? Will Act 2 liability releases become less valuable because those sites will now require vapor sampling when the property is sold? Will banks require vapor sampling at sites being acquired, even if that site has an Act 2 release that runs with the property?

The discussion of vapor intrusion at the SAB meeting was very thoughtful and practical. Everyone is motivated to come up with solutions that will not adversely impact the program. With that said, these are not easy issues. The most practical recommendation made by the Subcommittee was that a remediator should have the option to avoid the time, effort and costs associated with implementing any of the vapor sampling and vapor screening to proceed directly to the mitigation option at any point in the process. I see that as keeping with Act 2's mandate to take cost into consideration in developing remedies that are protective of human health and the environment. Why should someone have to spend $25,000 on vapor sampling when the remedy is installing a $5,000 radon-like mitigation system? That is the kind of common sense that Pennsylvania's brownfield program has been known for and it's nice to see the SAB members applying that common sense as it works its way through these very complex issues.

Again, I'm excited to be a new member of the SAB and I am very much looking forward to chairing the Process Subcommittee and helping Denise and Troy with the important task of revising the Act 2 TGM.

How Many Bats Does It Take to Stop a Windmill?

Thu, 20 Oct 2011 18:41:41 +0000

We've got many different kinds of bats in Pennsylvania but only one can stop a windmill. We've got big brown bats, little brown bats, tri-colored bats, hoary bats, small-footed bats, silver-haired bats, northern long ear bats, red bats, evening bats, and an occasional seminole bat. But none of those bats can stop a windmill.

The only bat in Pennsylvania capable of stopping a windmill is this little guy

It is the rarely seen Indiana bat (Myotis sodalis). It's a whopping 3 inches long and weighs in at less than half an ounce. It likes to hibernate in clusters of 250 bats per square foot on the ceilings and side walls of caves. Although 97 percent of Indiana bats are found in Missouri, Kentucky, Indiana and Illinois, Pennsylvania is on the edge of its habitat range.

The thing that distinguishes the Indiana bat from all other bats is that this little guy is the only bat in Pennsylvania that is on the federal endangered species list. That means, when you are siting a wind farm in western Pennsylvania, the US Fish & Wildlife Service will want a pre-construction impact assessment of wind development on bats. Depending on the project, they can ask the project developer to conduct mist-net and cave and mine opening surveys for the Indiana bat. The Pennsylvania Game Commission gets developers to sign Wind Energy Voluntary Cooperation Agreements that include monitoring of post-construction bat mortality. And if dead bats are found, and they turn out to be Indiana bats, you can expect both the US Fish & Wildlife Service and the PA Game Commission will be looking to the project developer to mitigate adverse impacts on the bats.

And this is not a hypothetical situation. It just happened at a 35 turbine wind farm in Cambria and Blair Counties. According to a news report , a bat carcass was discovered by a technician on September 26 and was brought into the office as per standard monitoring protocol. When it was determined to be an Indiana bat (sometimes Indiana bats are mistaken for little brown or northern long ear bats), the power company operating the wind farm immediately curtailed nighttime operations of the turbines and reported the incident to the PA Game Commission and the US Fish & Wildlife Service. At this time, the wind turbines are being turned off 30 minutes before dusk until 30 minutes after dawn every night. The expectation is that the wind farm will be able to be put back into full operation in mid-November, when the migratory season for bats ends and they begin their winter hibernation.

So, how many bats does it take to stop a windmill? Just one. If it's a dead Indiana bat .

Three Counties Tops in Marcellus Gas Production

Wed, 12 Oct 2011 12:49:10 +0000

An article appearing in Directions Magazine notes that Bradford, Susquehanna and Greene Counties have the highest producing Marcellus Shale gas wells in the Commonwealth of Pennsylvania, according to the most recent data. The same article notes that as of June 30, 2011, there were 1,655 wells reporting gas production, which was a 37% increase over the prior six months.

DRBC Should Use Extra Time to Give Full Consideration to PA's Objections to the Proposed Marcellus Regulations

Mon, 10 Oct 2011 13:51:04 +0000

Natural gas drillers looking to engage in Marcellus Shale exploration and development in northeastern Pennsylvania (mostly Wayne and Pike counties) are going to have to wait a little longer before they can start putting in their applications with the Delaware River Basin Commission. That's because the DRBC announced in a press release that it is rescheduling its previously announced special meeting to consider the Commission's draft Marcellus regulations. The meeting had been scheduled for October 21, 2011 but will now take place on November 21, 2011. The Commission's press release says the additional time is needed to complete the ongoing process and allow for an opportunity to publish the modified draft regulations on the DRBC website two weeks in advance of the expected vote by the commissioners. The web posting is planned for November 7 and will be for informational purposes only, since comments will not be accepted.

What's really going on here? Behind the scenes there is a significant states' rights issue that directly impacts the Commonwealth's sovereignty and its authority to authorize and regulate natural gas drilling. Fifty years ago, the Commonwealth entered into a Compact with other states and the federal government to protect the water resources of the Delaware River Basin. Since that time there has been a division of authority in which the DRBC regulates water withdrawals and the Commonwealth regulates just about everything else, including environmental and local land use decisions. The adoption of the DRBC's proposed regulations could move the Commission into enter areas traditionally left to Pennsylvania, such as regulating well pad site development. The big question for everyone to ponder is whether that's the appropriate role for DRBC. Do we really need a second agency of government stepping into areas that have traditionally been handled by the state?

In his written comments on the draft regulations, PADEP Secretary Krancer asserted that Pennsylvania has the regulatory capacity to protect Pennsylvania's surface waters and groundwater from the risks posed by Marcellus drilling and that the DRBC needs to avoid adopting duplicative and unnecessary regulations. The problem Pennsylvania faces is it clearly does not control its own economic destiny at DRBC. Other states that have no Marcellus Shale gas to develop have an equal voice and can vote to place regulatory roadblocks in front of natural gas companies whose activities are limited to Pennsylvania, even if Pennsylvania is firmly opposed to that. Is that fair? Landowners in Wayne and Pike County may not think so. Gas companies paid Pennsylvania landowners over $1.5 billion in 2009 for leasing rights and gas royalties. Many landowners in Wayne and Pike County have already entered into leases, but DRBC's lack of regulations has effectively placed a moratorium on their ability to derive any benefits from those leases.

Marcellus Shale development represents the most significant economic opportunity in Pennsylvania in decades. It has created tens of thousands of new jobs during a time of economic recession. If the regulations that DRBC adopts prevent or hinder that development, there will continue to be controversy, and possibly litigation brought by those who are adversely impacted.

And where does it stop? If the effect of the DRBC's regulations is to place restrictions on natural gas development in Pennsylvania, does that mean that Pennsylvania should be able to propose, through DRBC, restrictions on new housing developments in NJ or Delaware? Is it okay for DRBC to regulate local land use decisions in Pennsylvania but not okay to do so in these other states that don't have any Marcellus Shale gas, but whose land use decisions also impact the basin?

One would hope that the states would work cooperatively to ensure that the water resources of the basin are protected, doing so mindful of the regulatory capabilities of each state. If Pennsylvania was incapable of protecting the waters of the basin, then I could understand the need for a second layer of regulatory oversight. That does not appear to be the case. Pennsylvania has acted responsibly to development new regulations, including well-casing regulations. It has anti-degradation regulations to protect special protection waters. It has adopted new well fees that have allowed it to hire more well inspectors. Rather than being driven by emotion, Pennsylvania has approached Marcellus Shale regulation in a thoughtful manner, based on sound science, which balances the rights of landowners and the gas industry against the right that each citizen has to clean air and clean water.

The Governor, his cabinet, and the members of the General Assembly have to answer to the citizens of the Commonwealth every election. For Marcellus Shale development and for every other matter that impacts the environment in Pennsylvania, those people are the ones who swear an oath to protect and defend the Pennsylvania Constitution, which includes the right to clean air and clean water, and they are the ones whose decisions are judged by the voters every election. When those people act to regulate the development of Marcellus Shale, they do so mindful of that oath and that the actions they take must protect the health and environment of Pennsylvania's citizens. That is the essential states' rights issue here. I challenge anyone who thinks that Pennsylvania is incapable of protecting its own citizens and its water resources to spend a day at the Rachel Carson Building in Harrisburg and then travel to each of PADEP's regional offices. The Department's staff is well trained, highly capable and professional. They spend each and every day protecting Pennsylvania's environment, and they are fully capable of regulating Marcellus Shale development.

That's not to say that the DRBC's staff isn't equally capable, professional and diligent. I know many DRBC personnel from having worked with them when I was at PADEP. There's no question they are equal to PADEP in terms of training, knowledge and their desire to protect the environment. My point is that the DRBC's staff has traditionally regulated water withdrawals. They have not, up until now, been looked to for expertise in the area of local land use. There is no reason why DRBC and PADEP can't work together to protect the citizens of Pennsylvania and the entire basin. There shouldn't be any friction between the two entities. One would hope that they'd work together to ensure that there are no gaps in regulatory coverage. One would also hope that DRBC is taking this additional time to try to work things out with Pennsylvania, since it is the state in the Compact that is impacted the greatest by DRBC's proposed regulations.

No disrespect to the other states in the Compact, but at the moment, the center of the universe for Marcellus Shale exploration and development is Pennsylvania. It is imperative, therefore, that DRBC and its member states work with Pennsylvania as the Commission moves toward finalizing this important regulatory package. Maybe the best strategy would be to seize any and all common ground and postpone action in areas where full consensus is lacking. That would be a major step toward fairness and greater regulatory certainty for everyone.

Governor Corbett's Proposed Marcellus Shale Impact Fee

Thu, 06 Oct 2011 13:17:41 +0000

I worked closely with Dave Hess when he was Executive Deputy Secretary and I was Special Deputy Secretary under Jim Seif and Governor Ridge. Dave was responsible for PADEP's environmental digest that provided fresh news about activities at the Department and around the state that concerned environmental protection. These days, I get into my office and each morning, I log onto Dave's website to read all of the latest articles on environmental topics that effect the Commonwealth. This morning, Dave provides his own personal and very thoughtful analysis of the Governor's proposed Marcellus Shale Impact fee in an opinion piece entitled "Will we get a Chevy or a Pinto out of the Upcoming Marcellus Shale Debate." In his analysis, Dave asks and answers the most important questions facing the General Assembly as it reviews and assesses the Governor's proposal. I'm very much with Dave in spirit on this. In my mind, in a perfect world, the fee/tax imposed on Marcellus Shale gas extraction would provide a dedicated funding stream for HSCA that is sorely needed. In addition to addressing local impacts, it would also provide some amount of funding for Growing Greener, Environmental Stewardship and other funds that support brownfield redevelopment, land conservation, stream protection, and other important environmental projects throughout the Commonwealth. Again, I thank Dave for his thoughtful analysis and I urge everyone to read it.

Governor Corbett Releases Proposal for Implementing Marcellus Shale Advisory Commission's recommendations

Mon, 03 Oct 2011 16:52:07 +0000

In a news release issued earlier today, Governor Corbett announced his plans for implementing the 94 recommendations previously released by the Marcellus Shale Advisory Commission. The recommendations include legislative, regulatory and policy initiatives. The Department will be given increased enforcement authority over gas drillers, including the authority to impose higher fines and more quickly revoke or withhold permits.

In addition, the proposal includes the Governor's proposed impact fee on Marcellus gas drilling. Under the Governor's proposal, 75 percent of the impact fee would be split between the counties and municipalities where Marcellus wells are located, and the remaining 25 percent would go to the state (mostly PennDot) for road improvements, maintenance and other work in the communities where Marcellus wells are located. Of the money going to impacted counties and municipalities, some of the funds can be directed towards environmental projects that include water, stormwater and sewer construction and repair,along with preservation and reclamation of surface and groundwater supplies. Those projects are very similar to the kinds of projects previously funded by Growing Greener.

None of the proposed impact fee money would go into Statewide environmental funds, like Growing Greener or HSCA, and none of the money would go to counties that have no Marcellus well drilling.

The expectation is that one-third of the recommendations will require legislation, while the remainder can be implemented by policy. Governor Corbett has instructed all Cabinet Secretaries to create implementation plans for the policy-oriented recommendations and to have those submitted to his office within 30 days. Sounds to me like Secretary Krancer and his executive staff are going to be very busy between now and November 3.

PADEP Reorganization is Good for Brownfields

Wed, 21 Sep 2011 15:20:24 +0000

Yesterday, Secretary Krancer formally announced his reorganization for the Pennsylvania Department of Environmental Protection. According to the Secretary's announcement, there will be a new Bureau of Environmental Cleanup and Brownfields. That Bureau will be moved back under the Deputy Secretary that has authority over Waste (in addition to air, radiation and remediation). Right there, that is a significant change and one for the better. Originally, when Act 2 was passed in 1995, the Land Recycling Program was put under the Waste Management Bureau, which fell under the Deputy Secretary overseeing the implementation of all of the Department's waste programs. That ensured program consistency, inasmuch as the manager of the Waste Management Bureau (Jim Snyder at that time) could set policy in Central Office for the Act 2 program, and that policy would be implemented by regional managers whose programs aligned with Central Office. When Secretary McGinty reorganized, she created a Deputy Secretary for Community Revitalization and Local Government Support, and the Land Recycling Program was moved under that Deputate. The problem that created was that it took the Act 2 program out of alignment with the regional offices, making it more difficult to manage the implementation of Act 2 policy in a consistent manner statewide. It also marginalized the brownfield program by placing it under a much smaller Deputate with less authority and what we'd call "juice", which is what allows a program to grow and prosper and get things done. I'm sure the people responsible for the prior re-organization thought that moving the Act 2 program would be a positive, but I'd have to say that in hindsight the move only served to de-emphasize the importance of the Act 2 program.

I always thought that the prior administration put too much emphasis on green energy within the Department and not enough emphasis on brownfield redevelopment. As such, one program (green energy) grew while the other withered. With this reorganization, Secretary Krancer, in my mind, is elevating the brownfield program, putting it back in its proper and original alignment within the Department, and putting it on a path to increased prominence, consistent implementation, prosperity and growth.

The Secretary said that "the move is a reflection of the Governor's and my belief in the importance of Brownfields development to Pennsylvania." Boy, that's a refreshing statement.

I've always said that the Act 2 program is as much a jobs program as it is an environmental program. Putting old industrial sites back into productive use creates jobs, eliminates blight, and energizes communities. I've seen it with my own eyes. It works. With that said, at times recently it felt like the Act 2 program has been on auto pilot as the Department turned its attention to other things. Maybe that's what happens when programs move from innovative and new to mature and mundane.

There's also been some unnecessary back-sliding allowing the Department to make brownfield remediation projects look more like HSCA- type response actions, where site characterization can go on with no end, and remedies seem more about getting every last drop than addressing realistic risks and getting sites back into productive use. I believe some of that back-sliding may have been caused by taking the Act 2 program out of its proper alignment and weakening Central Office's ability to maintain program consistency in the implementation of Act 2.

Here's one example. Although the General Assembly directed the Department to consider the cost of the remediation as a factor (see Section 304(j)) in reviewing proposed remedies at Act 2 sites, that seems to have been completely lost in translation. At a time when unemployment is above 9 percent and companies (like the Commonwealth) have to closely watch every dollar that they spend, the brownfield program has to be part of the solution and not part of the problem. Businesses rightfully complain about a government that imposes unnecessary costs on business and then wonders why those businesses are furloughing people and can't create new jobs. It's pretty simple. A dollar spent on unnecessary site characterization or a remedy that doesn't take cost or risk into consideration is a dollar that can't be spent on hiring, payroll and benefits for new employees.

When Act 2 was written, it provided significant discretion to the Department in developing and implementing the regulations. In the early years of Act 2, that discretion was used to speed up cleanups, quickly put sites back into productive use, and prove to the naysayers how successful the program could be at creating jobs and economic opportunities. The program rightfully won accolades and awards and was seen as a model for other states to follow. What I've seen more recently, however, is a program that needs a shot in the arm, that needs to get back to its roots, and that needs to once again become part of the economic engine that drives this Commonwealth.

I trust that this reorganization will put the Act 2 program on that path. It will give Central Office more of a say in the day-to-day implementation of Act 2 policy, and that should lead to greater consistency and the use of discretion in a positive (job creating) way instead of a negative (keep characterizing and remediating until we tell you your done) way. I am heartened to see that brownfield development is a priority for this administration. So much time has been spent on Marcellus Shale (for good reason) that it's taken time and emphasis away from the other environmental programs that also create jobs in this Commonwealth. Act 2 does that. It always has and the folks in the Department who are the true believers in the power of Act 2 see that.

I know I sound like a preacher, but what we need is for the Act 2 program to , as the Secretary would say, "Get Back to Basics". This reorganization is the start. Where it goes from here is up to those within the Department who are in the chain of command that oversees the Act 2 program, from the regional ECP directors to the director of the Land Recycling Program, through the new Bureau Director, and up to the new Deputy Secretary. I wish then well with the implementation of the reorganization, and I stand ready to assist, both as a member of the Cleanup Standards Scientific Advisory Board (appointed by this Secretary) and as someone who formally stood in that chain of command and presented the Act 2 regulations to the Environmental Quality Board. I see very good things ahead for the Act 2 program.

Time for PADEP to Put SEPs Back in Its Enforcement Toolbox

Wed, 17 Aug 2011 13:30:41 +0000

Supplemental Environmental Projects or SEPs were part of PADEP's enforcement toolbox for many years. The Ridge Administration used them very effectively. The Department, in fact, still has a guidance document on its website that describes its SEP policy . I'm not sure exactly when it happened, but at some point during the last administration, the Department's leadership decided that SEPs would no longer be accepted as part of the settlement of an enforcement action. The people who made that decision presumably are now gone, but the policy prohibiting SEPs remains, and I am now urging the new leadership of the Department to put SEPs back into the Department's toolbox.

There is no downside to allowing parties to propose SEPs for inclusion in the resolution of an enforcement action. EPA not only accepts SEPs, it welcomes them. It has a page on its website with links to its SEP policy and guidance. I've resolved many enforcement actions with EPA on behalf of my clients, and many of the CO&As that were signed included SEPs. I had a CO&A that was signed recently by a PA municipal sewer authority that included a reduction in the civil penalty paid to EPA in return for the performance of a SEP that sought to educate the users of that sewer system to the need to properly dispose of unused pharmaceuticals. EPA actually gave us the idea for that SEP. We recently completed that SEP and it was very successful.

In December 2007, PADEP was a signatory to a Consent Order and Agreement with EPA that authorized a large chemical company to perform $4.5 million in Supplemental Environmental Projects as part of the settlement of a joint federal/state enforcement action arising out of a chemical release and fish kill. The SEPs included purchasing land, imposing conservation easements, creating a watershed preservation and restoration plan, and installing a biomonitoring system to provide advance warning of threats to fish in the Wissahickon Creek. So, it would appear that PADEP is still willing to allow SEPs in an enforcement action if it involves EPA and the project can be done under EPA's SEP Policy.

In 2007, Hastings College of Law, in conjunction with the ABA Section of Environment, Energy and Resources (of which I am a past officer), published a 50 State Survey of Supplemental Environmental Projects. That survey found that 28 states had formal published SEP policies and 20 other states and the District of Columbia had internal unpublished policies or practices allowing SEPs. At the time the survey was done, only North Carolina and South Carolina rejected the use of SEPs. If it decides to bring back SEPs, PADEP will be able to take comfort from the fact that the overwhelming majority of its sister states allow them.

SEPs are supported by EPA and by the overwhelming majority of states because they really do provide environmental benefits to communities. While fines and penalties go into statewide funds, SEPs must have a nexus with the violation, so their benefits are directed at the area where the harm occurred. Growing Greener used to provide grants to local communities for watershed management and restoration projects. That funding is gone. County and local government budgets have also been cut to the bone. SEPs can help fill those funding gaps and provide funding for worthy local environmental projects.

Again, I never understood why the Department stopped allowing SEPS. It's been a mystery to me. Why not give the Department the discretion to use them in the appropriate circumstances? What harm could come from that?

Marcellus Shale Advisory Commission Issues Report

Wed, 27 Jul 2011 19:25:31 +0000

On July 22, the Governor's Marcellus Shale Advisory Commission released its long anticipated report ("Shale Report"), which was written in response to Executive Order 2011-01, calling for the formation of a Commission that would issue a report to the Governor with recommendations to "develop a comprehensive, strategic proposal for the responsible and environmentally sound development of Marcellus Shale."

A significant portion of the Shale Report deals specifically with proposals for new environmental regulations that would be imposed on natural gas drillers, including tougher civil and criminal penalties for violations. I'll address those in subsequent postings. Other sections of the Shale Report concern new protections for public health, safety and natural resources. I'll get to those as well in later postings. For now, I want to focus on the things in the Shale Report that might be of interest to real estate developers and ancillary businesses who aren't currently players in the Marcellus Shale industry.

For those people, the most important thing to glean from the report is the fact that the Marcellus Shale is generating an enormous amount of new economic development activity in Pennsylvania. In that regard, the Shale Report finds that the natural gas industry is "creating significant demands for housing, lodging, support business activity, and transportation." In other words, if you are a real estate developer doing business in Pennsylvania, "go west" or "go north" (since there is no Marcellus Shale gas in southeastern PA), and you may find new opportunities awaiting that you won't find in areas not experiencing the growth spurred by the exploration and development of the Marcellus Shale formation.

I've met with local economic development agencies across the northern tier of Pennsylvania and their message, as confirmed by the Marcellus Shale Commission's Report, is that they desperately need new single family housing, apartment buildings, hotels, motels and warehouses to keep up with the growing demands of the Marcellus Shale industry.

For example, Section 8.5.7 of the Shale Report specifically addresses the lack of affordable housing in north central Pennsylvania and how the growth of the Marcellus Shale industry has compounded the problem. The Shale Report states: "as the gas industry is expanding into communities, housing costs have risen to meet demand such that local residents can no longer afford housing." It further finds that while there are some gas companies that have constructed "company man camps for workers", many local residents, especially renters, have been forced to relocate "further away form their jobs and communities to find an affordable place to live." For real estate developers who have previously built affordable housing or worked within federal and state programs designed to increase the availability of affordable housing, such as the Pennsylvania Housing Finance Agency or the federal Low Income Housing Tax Credit Program, building new homes or rental properties in the areas of Pennsylvania experiencing the Marcellus Shale boom could represent a significant new growth opportunity.

Real estate developers will also find it interesting that the Report recommends that the Commonwealth "identify strategic locations" to construct new "regional business parks" capable of tapping into existing infrastructure. The idea is that as Marcellus Shale related enterprises grow, the Commonwealth would like to channel that growth in the direction of brownfield sites or other properties close enough to existing roads, water and service services, to minimize the need for new infrastructure. In addition, the Report envisions specialty businesses, such as ethylene processing plants and co-generation facilities, being sited near gas sites to take advantage of natural gas byproducts that can be beneficially used for commercial purposes.

Finally, for those of you just waiting to buy a natural gas powered car but realize that there are no places to fill up, you'll be happy to know that the Shale Report recommends that Pennsylvania develop "Green Corridors" for natural gas fueled vehicles, including Compressed Natural Gas (CNG) and Liquefied Natural Gas (LNG) fueling stations, located at least every 50 miles and within two miles of designated highways. For now, I'd recommend holding off on that purchase, but don't be surprised when you start seeing CNG and LNG fueling stations popping up along the Pennsylvania Turnpike, probably in the not too distant future.

EPA Will Study Fracking Impact in Three PA Counties

Fri, 01 Jul 2011 12:46:11 +0000

EPA announced in a news release that it would perform seven "case studies" that would assess the potential impact of hydraulic fracturing on drinking water resources. The Agency intends to perform two types of studies. First, there will be "prospective case studies" in which EPA will monitor key aspects of the fracking process throughout the lifecycle of a well. Washington County, PA will be one of the three prospective case studies. Second, it will perform "retrospective case studies" in which EPA will examine areas where fracking has already occurred to determine if there has been any impact on drinking water resources. Bradford and Susquehanna Counties will be two of the five retrospective case studies. According to the news release, the studies will use best available science and will be conducted in a transparent, peer-reviewed process.

I have always been a little leery of EPA's involving itself in the oversight of the Marcellus Shale business in Pennsylvania. My perspective is that PADEP is more than capable of regulating the industry and protecting Pennsylvania's groundwater and surface water. With that said, I don't have any problem with EPA performing a study. The gentleman at EPA who announced the study, Paul Anastas, the Assistant Administrator for EPA's Office of Research and Development, served with me on the National Advisory Council on Environmental Policy and Technology (NACEPT). As NACEPT members, we could both see how seriously the scientists in the ORD office take their work. I would not expect to see a study where the conclusions are drawn up first and the data is gathered to support any pre-determined conclusions. To the contrary, I would expect to see an honest study done by scientists with no pre-determined agenda. That is what I observed of EPA's Science Office when I served on NACEPT for six years, and I would fully expect an objective, well reasoned and thoughtful study to be performed here.

Is New York getting Ready to Lift its Moratorium on Marcellus Drilling?

Thu, 30 Jun 2011 18:15:08 +0000

An article appearing in today's New York Times states that the Cuomo administration is expected to lift the state's moratorium on drilling in the Marcellus Shale formation. NYDEC is supposed to be releasing a study on hydrofracking tomorrow, and presumably that will foreshadow what New York plans to do going forward.

In the event that New York does lift its ban, you can be assured that the boom taking place in Northcentral Pennsylvania will spill over into Southcentral New York. Right now, there are a lot of very envious landowners just across the New York border wondering why the landowners in Bradford and Tioga Counties can get paid six and seven figure lease and royalty payments but they can't.

In the event New York lifts its moratorium, it will be very interesting to see how they handle the issues relating to the treatment of frac water. PADEP is trying to put an end to the use of POTWs to treat frac water with direct discharges to PA streams. Will New York look to impose similar restrictions? If you drill in the Marcellus, you are going to generate frac water. Does New York have any infrastructure at all in place to treat frac water? If it doesn't, you can expect some of the early frac water that would be generated would come to dedicated frac water treatment facilities in PA. The same goes for the drill cuttings. Where would those go in NY? Maybe there are good lessons to be learned by NYDEC in taking a look at how the Marcellus industry and PADEP's regulation of it have evolved.

Personally, I look forward to the day when New York lifts its Moratorium. Once it does, NY should align itself with PA on matters before the DRBC and EPA, and it should open up new economic opportunities for the companies now working the the Marcellus field in PA.

SB 263 Requires "Acceptable Data" for New Regulations

Wed, 29 Jun 2011 21:27:33 +0000

My thanks to Paul King at PEC for passing word along that the General Assembly passed SB 263 yesterday and it is on its way to Governor Corbett. The bill amends the Regulatory Review Act and requires that any regulation sent to the Independent Regulatory Review Commission (IRRC) be supported by "acceptable data". "Acceptable Data" is defined in the Act as "Empirical, replicable and testable data as evidenced in supporting documentation, statistics, reports, studies or research." The sponsor of the bill was Senator Ted Erickson, who previously served as regional administrator of EPA Region 3.

How is this likely to work? For environmental regulations, those are typically developed by PADEP and formally promulgated by the Environmental Quality Board (EQB). Under the amendment to the regulatory review Act, when notice of the proposed regulation is published in the PA Bulletin, there has to be a detailed description of any data relied upon to support the regulation, along with a demonstration that the data meets the statutory definition of "acceptable data." The statutory amendment also says that the burden is on the agency advocating the new regulation to prove that the data is acceptable. As a result, I would expect that when the EQB posts a notice of a proposed regulation in the PA Bulletin, it will be accompanied by a new section that identifies whether it relies on any scientific data and provides some proof that the data is "empirical, replicable, and testable." This will make things very interesting for PADEP, whose staff essentially manages the development and adoption of the regulations that go before the EQB.

How does one prove that the data is "empirical, replicable and testable"? Who in the Department is going to put together that finding and stand behind it? I'll give you one recent example of a regulation where, had this statutory amendment been in place, it would have made things most interesting. Last year, the EQB enacted regulations that changes some of the Act 2 statewide health standards. The initial proposal included changing the standard for MTBE. The scientific formula used for that proposed new standard was the exact same scientific formula used for all of the other health standards that were changed, but the EQB decided it couldn't change the standard for MTBE. Was that change based on "acceptable data" or was it based on other considerations? in dropping the proposed MTBE standard, would the EQB have to prove that its decision was based upon acceptable data? It may not be a perfect example, but I think you get the point.

This statutory change will give a lot of ammunition to those challenging proposed environmental regulations that must be approved ultimately by the IRRC, after they are finalized by the EQB. For those of us who believe in using sound science, the frustration expressed by the General Assembly, as embodied in SB263, appears to be justified. Regulations should be based on "acceptable data." With that said, it will be interesting to see how the DEP/EQB conform to this statutory amendment and how the IRRC implements it. In the note that Paul King from PEC sent around, he expressed the concern that the IRRC may not be equipped to evaluate the scientific validity of information provided by DEP/EQB to support data as being "acceptable data." He may have a point there. In my mind, the burden will be on PADEP to ensure that its data is reliable. That may mean greater use of outside advisory boards like the Cleanup Standards Scientific Advisory Board to doublecheck the reliability of the Department's data. What is the Department going to do when it wants to make a regulatory change but it can't come up with "empirical, replicable, testable data" to support it?

I respect Senator Erickson for insisting that regulations be based on valid science and acceptable data. Having served as EPA region 3 administrator, the Senator had an inside view of how the regulatory process works both at the federal and state levels. As someone who understands the necessity of using reliable data to develop environmental regulations, he should be commended for getting this passed and for sending a strong message. Now comes the hard part. Making sure it works as he envisioned.

More Budget Pain at PADEP

Wed, 29 Jun 2011 14:25:20 +0000

PADEP loses an additional $37 million in the state budget that the Senate passed yesterday and Governor Corbett is expected to sign into law later this week. Given the steep cuts imposed on PADEP over the last few years, $37 million seems more manageable, but it will still inflict additional pain on a Department that we all rely on to protect the Commonwealth's environment. The cuts are very ably broken down in a posting on Dave Hess' blog. The cuts are as follows:

Environmental Protection

Total General Fund Appropriations: $135.4 million, decrease of $10 million
General Government Operations: $10.7 million, decrease of $2.3 million
Environmental Program Management: $28 million, decrease of $1.4 million
Environmental Protection Operations: $78.1 million, decrease of $1.3 million
Chesapeake Bay Agricultural Source Abatement: $2.7 million, decrease of $76,000
Flood Control Projects: zeroed out, decrease of $3.4 million
Sewage Facilities Planning Grants: $779,000, decrease of $87,000
Sewage Facilities Enforcement Grants: $2.5 million, decrease of $49,000
Conservation Districts: $2.8 million, decrease of $29,000

Fair Share Act Does Not Change HSCA Joint and Several Liability

Wed, 29 Jun 2011 12:38:46 +0000

Governor Corbett has now signed Senate Bill 1131, commonly referred to as the Fair Share Act, into law. The law was one of the Governor's top legislative priorities. It is designed to ensure that business owners and other defendants do not bear a disproportionate share of the liability for damages awarded in civil cases. Under the new law, defendants that are found to be less than 60 percent at fault would not have to pay more than their share of the damages, except in certain circumstances. The carve outs include torts involving intentional acts, intentional misrepresentation, liquor law violations AND "a release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108, known as the Hazardous Sites Cleanup Act." As a result, the Fair Share Act has no effect on the joint and several liability imposed upon site owners and operators, prior owners and operators, generators and transporters under HSCA, the state's version of Superfund. Why, you might ask, would the General Assembly decide that HSCA merited special treatment. This same issue came up when I was at PADEP. The reason HSCA liability is carved out is because the state believes that if the fair share concept was imposed on environmental liability at HSCA sites, the state would lose considerable leverage in negotiating settlements with PRPs. Just having the threat of joint and several liability under HSCA hanging over their head can often drive a PRP to agree to remediate a site and avoid having the state perform the work and then seek 100% reimbursement. It's one more tool that the Department has to seek the best result for the Commonwealth. I am not saying I agree with that, but I believe that is the reason why HSCA liability has continued to be carved out each time this legislation has been previously proposed and as it stands now, with the Governor having signed it into law.

Pennsylvania Brownfields Inventory Needs More Work

Tue, 17 May 2011 21:04:20 +0000

As a frequent visitor to the PADEP website, I noticed just the other day that there was a new feature on the opening page of the website called "Pennsylvania Brownfields Inventory". I clicked on it to see what I might find. Based on what I found, I'm hoping that it is a "work in progress". There were only about 80 sites statewide and the search capabilities were fairly limited. For example, you couldn't search by site size or by Keystone Opportunity Zones or by site features, all the kinds of things that a brownfield redeveloper might find helpful. My understanding is that the initial site list was put together by Team PA. While the feature is a good start, it definitely needs more work, and I would hope that the Department could add more sites and more search capabilities to the inventory. PADEP is viewed as a national leader in brownfields redevelopment and any brownfields inventory that it makes available on its website should be reflective of that leadership status.

PADEP Imposes Record Fine on Oil and Gas Company

Tue, 17 May 2011 18:25:32 +0000

In a press release issued earlier today, PADEP announced that it had imposed a $1,088,000 fine on Chesapeake Energy for violations related to natural gas drilling activities. Chesapeake entered into a CO&A with the Department and agreed to pay $900,000 for contaminating private water wells in Bradford County and $188,000 for a tank fire at one of its drilling sites in Washington County. The water contamination was unrelated to Marcellus Shale fracking activities. It arose out of improper well casing and cementing in shallow water zones. As part of the CO&A, Chesapeake agreed to corrective actions, including remediating the contaminated water supplies.

With this fine, Secretary Krancer has forcefully laid down the law. In the press release, he is quoted as saying "Our message to drillers and to the public is clear." That message is that the Department intends to vigorously enforce Pennsylvania's Oil and Gas laws.

I expect that the fines can and will go higher if Secretary Krancer's message is not heeded by the industry. Given the heightened public scrutiny, it is hard to argue with a "zero tolerance" policy for oil and gas violations, especially those involving the contamination of private wells. The industry has the know how and the resources to prevent that from happening. If it can't assure the public that the drilling can be done safely and in compliance with Pennsylvania's laws and regulations, then it could very well squander what many consider to be a once-in-a-lifetime opportunity.

Allegheny-Ludlum to pay $535,000 in cleanup costs for Breslube-Penn Superfund site (PA)

Wed, 22 Feb 2012 04:00:01 +0000

PHILADELPHIA (February 22, 2012) -- In settlement papers filed in federal district court, Allegheny-Ludlum has agreed to reimburse the federal government for $535,000 of past cleanup costs at the Breslube-Penn Superfund site in Coraopolis, Pa., the U.S. Environmental Protection Agency announced today

Pennsylvania Company Settles Toxic Chemical Reporting Violations at Nazareth, Pa. Facility (PA)

Tue, 21 Feb 2012 04:00:01 +0000

PHILADELPHIA (February 21, 2012) -- The U.S. Environmental Protection Agency today announced that Essroc Cement Corporation has agreed to pay a $82,000 penalty to settle alleged violations of toxic chemical reporting requirements at its manufacturing facility located at 401 West Prospect St., Nazareth, Pa. According to EPA, Essroc failed to submit three years of required reports on a regulated toxic chemical (lead) which was processed at this facility

Maryland Company Settles Pesticides Violations (PA)

Thu, 09 Feb 2012 04:00:01 +0000

PHILADELPHIA (February 9, 2012). PAMEX Foods, Inc. of Forestville, Md., has agreed to pay a $158,880 civil penalty to settle alleged violations of federal pesticide regulations, the U.S. Environmental Protection Agency announced today. EPA cited PAMEX for violating the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), a federal law requiring the registration of pesticide products and pesticide-production facilities, and the proper labeling of pesticides

Green Streets-Green Jobs-Green Towns Grants Available to Improve Chesapeake Bay Water Quality, Cities, and Towns (DE, DC, MD, PA, VA, WV)

Wed, 08 Feb 2012 04:00:01 +0000

(ANNAPOLIS, Md. – February 8, 2012) Today the Chesapeake Bay Trust, U.S. Environmental Protection Agency, and the state of Maryland unveiled an expanded Green Streets-Green Jobs-Green Towns grant initiative to help cities and towns in the Chesapeake Bay watershed accelerate greening efforts that improve watershed protection, community livability, and economic vitality

Deadline Fast Approaching for Schools to Enter the Green Ribbon School Competition (PA)

Tue, 07 Feb 2012 04:00:01 +0000

PHILADELPHIA (February 7, 2012) -- EPA Regional Administrator Shawn M. Garvin is encouraging all schools in the mid-Atlantic region to get recognized for their environmental achievements by entering the Green Ribbon School Competition. The deadline for the new pilot award program, created by the U.S. Department of Education and supported by EPA, is March 22 but all applications must be sent to the individual state Department of Education by February 23, 2012

EPA reaches settlement with companies to pay cleanup costs for Occidental Chemical Corp. Superfund site (PA)

Wed, 25 Jan 2012 04:00:01 +0000

PHILADELPHIA (January 25, 2012) -- The U.S. Environmental Protection Agency today announced that current and former owners and operators of the Occidental Chemical Corporation Superfund Site in Lower Pottsgrove Township, Montgomery County, Pa

EPA to Begin Sampling Water at Some Residences in Dimock, Pa. (PA)

Thu, 19 Jan 2012 04:00:01 +0000

PHILADELPHIA (Jan. 19, 2012) – The U.S. Environmental Protection Agency announced today that it plans to perform water sampling at approximately 60 homes in the Carter Road/Meshoppen Creek Road area of Dimock, Pa

EPA recommends radon testing in January - Protect your family from the second leading cause of lung cancer in the U.S. (DE, DC, MD, PA, VA, WV)

Tue, 17 Jan 2012 04:00:01 +0000

PHILADELPHIA (January 17, 2011) - January is national Radon Action Month and the U. S. Environmental Protection Agency encourages everyone to test their homes for radon

Pennsylvania Company to Pay $25,347 Penalty for Inadequate Oil Spill Prevention at Harrisville, Pa. Facility (PA)

Tue, 10 Jan 2012 04:00:01 +0000

PHILADELPHIA (January 10, 2012) -- In a settlement with the U.S

Apartment House Owner Settles Violations of Lead-Paint Notification Rule in Reading, Pa. (PA)

Tue, 10 Jan 2012 04:00:01 +0000

PHILADELPIA (January 10, 2012) -- Wyomissing Park Apartments, owner of several apartment houses in Reading, Pa., has settled alleged violations of a federal law requiring disclosure of lead-based paint hazards to residential tenants, the U.S. Environmental Protection Agency announced today

Overexposure to radon: Second leading cause of lung cancer in the U.S. (PA)

Thu, 05 Jan 2012 04:00:01 +0000

PHILADELPHIA ( January 5, 2012) - The U.S. Environmental Protection Agency has declared January as Radon Action Month as part of the agency’s on-going efforts to make families aware of the health hazard presented by radon in homes

Scranton sewer authority penalized for safety violations (PA)

Wed, 04 Jan 2012 04:00:01 +0000

PHILADELPHIA (January 4, 2012) -- The Sewer Authority of the City of Scranton will pay a $12,619 penalty and complete a $30,000 tree planting project under a settlement with U.S

Delmar’s new state-of-the-art wastewater treatment facility unveiled (PA)

Tue, 20 Dec 2011 04:00:01 +0000

DELMAR, DE/MD (Dec. 20, 2011) – Delmar’s new state-of-the-art wastewater treatment facility was unveiled today at a ribbon-cutting ceremony that included dignitaries from Delaware, Maryland, and the U.S. Environmental Protection Agency

DuPont Settles Hazardous Waste Violations at Deepwater, N.J. Facility (PA)

Fri, 16 Dec 2011 04:00:01 +0000

PHILADELPHIA (December 16, 2011) -- In settlement papers filed in federal court by the U.S. Department of Justice, E.I. DuPont de Nemours, Inc

Augusta County Twice Honored by EPA For Protecting Waters (PA)

Thu, 15 Dec 2011 04:00:01 +0000

(PHILADELPHIA - December 15, 2011) - The U.S

SEPTA Receives $1.2 Million EPA Grant to Improve Air Quality (PA)

Thu, 08 Dec 2011 04:00:01 +0000

PHILADELPHIA (Dec. 8, 2011) – A $1.2 million grant from the U.S. Environmental Protection Agency will help SEPTA improve air quality in and around its rail yards, through the conversion of a locomotive to a clean diesel engine. EPA Regional Administrator Shawn M

EPA Notifies Four West Virginia Growers to Obtain Discharge Permits (WV)

Wed, 30 Nov 2011 04:00:01 +0000

(PHILADELPHIA – Nov. 30, 2011) The U.S. Environmental Protection Agency announced today that it has notified four poultry growers in West Virginia to cease discharging pollutants from farms to waterways and obtain the necessary permits that are required by the Clean Water Act

EPA Food Recovery How-to Workshop for Grocery, Retail, Food Bank, Composting and Government Agencies Staff (PA)

Tue, 29 Nov 2011 04:00:01 +0000

PHILADELPHIA (November 29, 2011) -- On November 30, 2011, the U.S. Environmental Protection Agency and the Institute for Local Self-Reliance will hold a Food Recovery Workshop at the Capital Union Building on Penn State University's Harrisburg Campus. Registration begins at 9:30 a.m

NPDES Permit?

Regina Hott — Tue, 05 Oct 2010 10:07:00 +0000

Did you receive an E&S permit for a project that you haven't started working on yet? If you have one of those projects that were between one and 5 acres and did not require an NPDES permit you may have to resubmit. According to DEP, when all new chapter 102 regulations come effective on November 19, 2010 projects that currently have approval for one to 5 acres but do not have an NPDES permit

E&S Regulations Effective November 19, 2010

Regina Hott — Wed, 25 Aug 2010 09:25:00 +0000

E&S Regulations Effective November 19, 2010: "For those of you who didn't read the latest edition of the PA Bulletin, the new E&S/stormwater management regulations were posted on Saturday August 21. The PA Bulletin notice says that the new regulations become effective on November 19, 2010. All developers need to be familiar with the new regulations inasmuch as they carry significant regulatory

DEP Fines Veterinary Hospital, Dentist for X-Ray Violations

Wed, 08 Feb 2012 05:00:00 +0000

The Department of Environmental Protection has fined two companies, Avian & Feline Hospital of Camp Hill, Cumberland County, and Bowser Dentistry LLC of York, York County, for violations of the Radiation ...

DEP Fines Schuylkill Valley Engineering $10,000 for Radiation Protection Act Violations

Wed, 08 Feb 2012 05:00:00 +0000

The Department of Environmental Protection has received $10,000 from Schuylkill Valley Engineering in Reading, Berks County, as a result of a consent order and agreement for violations of the Radiation ...

DEP to Hold Public Meeting, Hearing Jan. 25 to Discuss Cleaning Up Berkley Products Plant Site

Wed, 18 Jan 2012 05:00:00 +0000

The Department of Environmental Protection will hold a public meeting and hearing at 7 p.m. on Wednesday, Jan. 25, to outline its plan to clean up a former paint fabricating facility in Akron, Lancaster ...

DEP Issues Air Quality Permit to Tucker Industries in Adams County

Thu, 22 Dec 2011 05:00:00 +0000

The Department of Environmental Protection has issued a Title V air quality permit to Tucker Industrial Liquid Coatings Inc. for its metal surface coating facility on North Avenue in East Berlin, Adams ...

Mosquito Spraying Set for Northumberland County on Oct. 11

Fri, 07 Oct 2011 04:00:00 +0000

The Department of Environmental Protection will apply treatments the evening of Tuesday, Oct. 11, in residential and recreational areas of West Chillisquaque, Northumberland County, to control adult mosquito ...

DEP's Williamsport, Harrisburg Regional Offices to Resume Normal Hours

Thu, 06 Oct 2011 04:00:00 +0000

The Department of Environmental Protection’s regional offices in Williamsport, Lycoming County, and Harrisburg, Dauphin County, are returning to normal operating hours, weekdays from 8 a.m. to 4:30 ...

Mosquito Spraying Set for Lebanon County on Oct. 5, 6

Tue, 04 Oct 2011 04:00:00 +0000

The Department of Environmental Protection will apply treatments the evening of Wednesday, Oct. 5, in residential areas of Myerstown and Richland boroughs and Jackson Township, and on the evening of Thursday, ...

Mosquito Spraying Set for Blair County on Oct. 4

Fri, 30 Sep 2011 04:00:00 +0000

The Department of Environmental Protection will apply treatments the evening of Tuesday, Oct. 4, in residential areas of Antis and Blair townships, Blair County, to control adult mosquito populations.

Mosquito Spraying Set for Snyder, Union Counties on Sept. 28

Tue, 27 Sep 2011 04:00:00 +0000

The Department of Environmental Protection will apply treatments the evening of Wednesday, Sept. 28, in residential areas of Monroe Township, Snyder County, and Lewisburg Borough and White Deer Township, ...

Mosquito Spraying Set for Lebanon County on Sept. 28

Tue, 27 Sep 2011 04:00:00 +0000

The Department of Environmental Protection will apply treatments the evening of Wednesday, Sept. 28, in residential areas of North Cornwall and South Lebanon townships, Lebanon County, to control adult ...